Arndt v. Smith, [1997] 2 S.C.R. 539 (1997)
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Arndt v. Smith, [1997] 2 S.C.R. 539 (1997)
Arndt v. Smith, [1997] 2 S.C.R. 539
Margaret Smith Appellant v.Carole Arndt and Dennis Jackson RespondentIndexed as: Arndt v. SmithFile No.: 24943.1997: January 29; 1997: June 26.Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.on appeal from the court of appeal for british columbiaNegligence -- Medical malpractice -- Causation -- Mother contracting chickenpox while pregnant -- Child born with disabilities resulting from mother's chickenpox -- Mother suing doctor for costs associated with raising child -- Whether loss caused by doctor's failure to advise properly of risk -- Appropriate test of causation.A sued her physician S for costs associated with rearing her daughter, who was congenitally injured by chickenpox A had contracted during her pregnancy. She contended that had S properly advised her of the risk of injury to her fetus, she would have terminated the pregnancy and avoided the costs she now incurs. S contended that A would not have terminated the pregnancy even if she had been fully advised, and therefore asserted that the loss claimed was not caused by the failure to advise of risk. The trial judge dismissed A's claim. Evaluating her testimony at trial that she would have had an abortion against the fact that she desired a child, that she was sceptical of "mainstream" medical intervention, that an abortion in the second trimester held increased risks and that an abortion would have required the approval of a committee on health grounds, the trial judge concluded that A would not, on a balance of probabilities, have aborted the pregnancy. Also supportive of the trial judge's conclusion was evidence that the risk of serious injury to the fetus was very small and medical advisers would have recommended against an abortion. The Court of Appeal held that the trial judge had applied the wrong test and directed a new trial.Held (Sopinka and Iacobucci JJ. dissenting): The appeal should be allowed.A's claims for economic loss are not barred by s. 3(1)(a) of the British Columbia Limitation Act, which provides a two-year limitation period in actions for "damages in respect of injury to person or property, including economic loss arising from the injury", because they do not relate to personal injury either to A or to her daughter.Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Major JJ.: When determining whether the loss claimed by A was caused by S's failure to advise of the risk the court should adopt the modified objective test set out in Reibl v. Hughes. The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the plaintiff's circumstances would have done if faced with the same situation. The trier of fact must take into consideration any "particular concerns" of the patient and any "special considerations affecting the particular patient" in determining whether the patient would have refused treatment if given all the information about the possible risks. The "reasonable person" who sets the standard for the objective test must be taken to possess the patient's reasonable beliefs, fears, desires and expectations. While evidence of reasonable fears and concerns can thus be taken into account, purely subjective fears which are not related to the material risks should not be considered. The modified objective test strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach. A purely subjective approach fails to take into account the inherent unreliability of the self-serving assertion of a plaintiff, while the purely objective standard might result in undue emphasis being placed on the medical evidence, essentially resulting in a test which defers completely to medical wisdom.It is appropriate to infer from the evidence in this case that a reasonable person in the plainti...See the full content of this document
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