Class 5.docx

Week 5: More Special Issues REIBL v HUGHES NOTE: Now here is an odd case. The court must consider whether a doctor is required to inform the patient of the nature and the risks of a surgical procedure as part of his treatment of the patient. It is not a case about a negligent surgical procedure. You will note that the trial court gave judgment for the plaintiff both in negligence and in battery. You will recall battery is an intentional tort, defined as the intentional application of force on the person of another, without that person’s consent. The Court of Appeal disagreed with battery as a cause of action in these circumstances, I disagree with that – but who am I? Another difficult problem for the court is that the plaintiff is suing on the basis that he would not have had the surgery if he really knew the risks. Hindsight is 20 / 20 they say, every plaintiff would make this claim, once they knew the operation didn’t turn out they way they had hoped. So look for the way the court recognizes, articulates, and ultimately deals with this problem. It is also worth noting what the Supreme Court has to say about expert evidence. An expert is supposed to give her evidence in hypothetical terms, it is the only “opinion evidence” that is allowed in a trial, and the expert is not to “decide” the facts. The expert provides an opinion that will inform and educate the “trier of fact”, be it judge or jury, and the trier of fact will decide the facts. Letting the expert give evidence about the particular takes away the job of the trier of fact, and this is against our legal tradition. REIBL v HUGHES - PHYSICIAN’S DUTY TO DISCLOSE RISK Facts: Plaintiff had an operation, removal of occlusion of carotid artery - during or right after operation, π had massive stroke, paralysis over right side of body, impotent  π formally consented, but alleged did not know risks of surgery Held: at trial, for the π, def did not properly explain risks, duty to disclose, π would have refused surgery with knowledge of the risk,  liability in negligence for negligently informing  liability in battery - intentional application of force without (informed) consent @ 1st appeal:  new trial ordered on liability and damages  restricted to negligence only, dismissed battery (reject vitiated consent as non consent)  both sides appealed - π appealed whole case; def accepted damages award, appealed decision re: new trial, asked for dismissal on issue of liability  nunc pro tunc - should have been a cross appeal, accept claims now as if it had been done when required SCC:  refer to Hopp v Lepp, doctor’s duty to disclose to patient, 1-97  must answer questions, and without being asked, disclose nature of operation; gravity of operation; material risks, special or unusual ones; includes serious risks even if remote Trial J’s findings:  informed consent is part of Dr’s duty, full information  duty to warn of particular risks of that procedure  factors: emergency requiring immediate treatment; patient’s emotional, intellectual ability to understand; gravity of known risks; likelihood of risk and severity  juries find determination complicated, rely (a bit too much?) on expert evidence  found duty to advise patient of risk of death and / or stroke etc  patient would then be able to make proper decision  if patient knew - would have refused op  didn’t #1, explain nature and purpose; #2, explain potential risks  π mainly concerned with quality of life, also wanted to work to pension eligibility Battery – Trial j accepts battery, CA does not  rejects lack of “informed consent” as supporting action for battery  says that without fraud or misrepresentation, lack of disclosure is framed in negligence Court of Appeal:  rejected use of expert evidence, expert witness’s’ statistical data was not consistent, a lack of presentation of statistics wasn’t negligent - they would only confuse the guy   ** SCC - suggestion that expert medical evidence will determine what should be disclosed is rejected - important evidence, but leave it to the trier of fact, - also judged by what def knows is important / material to the patient  need evidence of patient, family, …  some patients are unstable, can’t be told, … OBJECTIVE V SUBJECTIVE TEST  subjective test: did the patient have the operation because the Dr negligently failed to disclose the risk - i.e. can patient prove he would not have had operation if he knew the risk  objective - would reasonable person, properly advised of the risk, have refused the operation  1-104, 1st full para  problems here: if objectively operation is justified, Dr and expert evidence is only relevant evidence - if subjective, patient always says wouldn’t have had operation  look objectively in balance of risk - in favour of surgery or no surgery, taking special circumstances of patient into account  π wanted his pension,  patient’s particular concerns must be reasonably based, ** this means you can’t choose not have surgery for some dumb reason  def did not tell anything beyond better with operation (op) than without it  8 to 10 of 60 to 70 of def’s own patients had died from same operation  π thought op to cure headaches, def didn’t tell him otherwise  no specific reference to risk of stroke other factors: no immediate need for op; immediate risk more from surgery than lack of; π didn’t speak English all that well; nothing to show π unable to cope with disclosure; ratio: 1-108 - under heading of causation, would reasonable person in π’s circumstances have foregone surgery? - yes - this is a strange case to analyze, the doctor is negligent if he fails to tell the patient sufficient information, (he has a duty to explain things), and this lack of disclosure caused the plaintiff, on a reasonable person (in the plaintiff’s position) standard, to have an operation he would have otherwise refused to undergo causation: the lack of disclosure caused the plaintiff to undergo surgery CROCKER V SUNDANCE NORTHWEST RESORTS LTD. – Duty to Warn and Contributory Negligence NOTE: Here is a classic case that raises the hackles of the arm chair critic. A guy gets drunk and hurls himself down a ski hill on an inner tube, and successfully sues the ski hill for his devastating and entirely predictable injury. At what point, we might ask, do people become responsible for their own actions? In fact, the plaintiff will be allotted some responsibility, the court finds that his own negligence contributed to his injury. Contributory negligence: under the Contributory Negligence Act the court is obliged to apportion the degree of responsibility between a plaintiff and a defendant, where appropriate. If a person does not wear a seatbelt, that may be negligent conduct that contributed to their injury. The legislation was required because historically, if a defendant raised the issue of contributory negligence on the part of the plaintiff, courts often did not want to try to apportion the damages between plaintiff and defendant, and often gave the plaintiff nothing at all. Facts: The π had a ski membership at def ski club,  def advertised event, tube race, encouraged “party atmosphere  most of participants were drinking  π and buddy completed app form - π says didn’t read the waiver on the back of the form  went to the race the following week, drank a lot, obviously intoxicated  won first “heat”, on way back up the hill, drank more, dropped the “tube”, fell down  def employee saw he was drunk, told him not to race, didn’t physically restrain him  π broke his neck, - quadraplegic Issues: π sues for 1) failure to warn of dangers (moguls); 2) failure to warn of dangers of tube racing; 3) failure to stop him from competing when he was drunk Def: 1) no unusual dangers; 2) no dangers in tube racing that required a warning to π; 3) his own negligence caused his own risk; 4) voluntary assumption of risk of premises and tube racing; 5) relied on exclusion clause or waiver Held: for the π, def could not rely on the exclusion clause  duty to ensure premises were safe  premises were safe, use was dangerous  duty to warn of serious danger inherent in tube-racing, (own employee hurt on the same day), duty to warn of type / extent of potential injury  tube racing danger not as obvious as race car driving (obiter)  duty arises by contract (also Occupier of land as in Jordan House case)  duty to save person from own want of care - prevent a drunk from racing  cost or burden of avoidance is small compared to extent of injury  therefore, def negligent  no words or conduct by def to show voluntary assumption of risk, or accept consequences of negligence  a release of liability in tort for damages must be clear language in order to succeed  * back of tickets - release or waiver π said he never read this, J says BS - doesn’t matter  because 1) no specific words to exclude all liability, or negligence specifically; 2) tube racing does not fall within activities contemplated by ticket contract  waiver / release on the application for tube race would relieve from liability if π were bound - not bound because def obligated to inform of terms  1-114-115 - Waddams comments on signed documents, cannot rely on them when know or ought to know other party did not agree - onerous terms to be drawn to attention of and explained to  A) likelihood of injury high  B) cost or “burden” of avoidance is low when compared to potential severity of injury NORSK v. CN PURE ECONOMIC LOSS: NOTE: You are in the theatre, watching a movie. A car slides off of the road outside and knocks a hydro pole over. The lights go out, and you can’t watch the rest of the