Next week: read Jordan House vs. Menow and
-Don’t find liabilty by statute
-Read Nesplin case
Case Study: Reibl vs. Hughes
-Nothing wrong with the way the operation was performed
-44 years of age when he had the operation, plaintiff had a big stroke soon after causing severe physical
problems as a result
-Basis of law suite: if he had known more of the risks, he would not have had the operation
-Plaintiff won at trial because the doctor breached his ‘duty to disclose’: nature of the operation and the
-Liability was found in negligence and in battery (intentional application of force without consent)
-Ontario Court of Appeal ordered new a new trial for negligence only. Both sides appealed that
-A doctor’s duty to disclose to a patient: must answer all patient’s questions and disclose all risks
(material, special, serious even if remote possibility), and expected outcome, must take certain factors
into account, if it’s an emergency- do they need immediate treatment? Doctor must explain to the
patient in a way they can emotionally or intellectually understand
-Experts were brought in to discuss statistical evidence of likelihood of risk; evidence given in a
hypothetical way (only opinion evidence admissible in trial). Experts there to educate and assist, the
jury in this case were probably swayed too much by all the confusing information. Court of Appeal
rejected expert evidence because it was determining the outcome.
-A duty was found to advise the patient of risk of death or stroke.
-The doctor has to find out from the patient what he/she finds important, what his/her concerns are
Test: To determine the knowledge and intentions of the plaintiff
-Plaintiff must prove the lack of knowledge caused him to have the operation
Objective- based on someone else deciding it’s “worth the risk”. In this case, doctor just told him he
would be better off having the operation, no mention of risk of stroke
Subjective- based purely on the plaintiff’s words post operation. In this case, the way we must study it:
given all the information, would it have been reasonable for the person to turn down that operation?
- Both opinions are required to make the decision
Case Study: Crocker and Sundance
-Guy took out a membership at a ski club, entered a contest (something to do with a bull and a tractor
on the ski hill?
-After excessive drinking, entered the contest, won the first heat. Drank some more, fell over a few
times, was told he might not be fit to enter, but he did it anyway. Slid down the hill, broke his n