Arndt et al. v. Smith, (1997) 213 N.R. 243 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 26, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 213 N.R. 243 (SCC);[1997] 8 WWR 303;72 ACWS (3d) 185;1997 CanLII 360 (SCC);[1997] SCJ No 65 (QL);35 CCLT (2d) 233;213 NR 243;148 DLR (4th) 48;35 BCLR (3d) 187;[1997] ACS no 65;[1997] 2 SCR 539;92 BCAC 185;JE 97-1422;[1997] CarswellBC 1260;150 WAC 185

Arndt v. Smith (1997), 213 N.R. 243 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1997] N.R. TBEd. JN.025

Margaret Smith (appellant) v. Carole Arndt and Dennis Jackson (respondents)

(24943)

Indexed As: Arndt et al. v. Smith

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

June 26, 1997.

Summary:

A mother contracted chicken pox during pregnancy. Her daughter was born with serious mental and physical disabilities. Both parents and the daughter sued their doctor for damages for alleged negligence in failing to warn them of the special risks to the baby. The daughter's claim was aban­doned by consent.

The British Columbia Supreme Court, in a judgment reported 93 B.C.L.R.(2d) 220, dismissed the mother's action, finding no causal link between the doctor's negligence and the parents' losses. The court also ruled that the father's claim was dependent upon the mother's and, therefore, also was dis­missed. The court held that the action was brought beyond the limitation period. The parents appealed. The doctor cross-ap­pealed.

The British Columbia Court of Appeal, in a judgment reported 61 B.C.A.C. 57; 100 W.A.C. 57, allowed the appeal and ordered a new trial on the issue of causation and, if necessary, damages. The court dismissed the cross-appeal. The doctor appealed.

The Supreme Court of Canada, Sopinka and Iacobucci, JJ., dissenting, applied the modified objective test for causation, al­lowed the appeal and restored the trial judge's decision dismissing the action.

Limitation of Actions - Topic 3108

Actions in tort - Negligence - Personal injury - A baby was born with mental and physical disabilities after the mother con­tracted chicken pox during pregnancy - The parents sued their doctor, more than two years after the child's birth, but less than six years after the mother suffered the infection - Section 3(1)(a) of the Limita­tion Act provided a two year limitation period for actions for "damages in respect of injury to person or property, including economic loss arising from the injury" - The Supreme Court of Canada held that the mother's "claims for economic loss are not statute-barred because they do not relate to personal injury either to [the mother] or to [the baby]. ... Unlike her claim for emotional trauma, stress and loss of enjoyment of life, [the mother's] claims for economic loss do not relate to physi­cal, emotional or mental injury to her body. ... The action for economic loss is for the expenses incurred in raising [the baby]. ... It is therefore not caught by the wording of s. 3(1)(a) of the Limitation Act." - See paragraphs 1, 20, 74, 75.

Medicine - Topic 3050

Relation with patient - Consent to treat­ment - Negligence - Causation - [See Torts - Topic 61 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence - Obstetrical or gynaecological care - [See Torts - Topic 61 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Limitation of Actions - Topic 3108 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - The plaintiff contracted chicken pox in the 12th week of pregnancy - The baby was born seriously disabled - The de­fendant doctor negligently failed to warn the plaintiff of material risks to the baby - At issue was causation, being whether the plaintiff would have terminated the preg­nancy had she been advised of the risks - The Supreme Court of Canada held that causation in medical negligence actions was based on the modified objective test (i.e., "what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation") - In determining the plaintiff's circum­stances, age, income, marital status and other factors should be considered, in­cluding "special considerations" affecting the plaintiff and any "specific questions" posed to the doctors - The "reasonable person" must be taken to possess the plaintiff's reasonable beliefs, fears, desires and expectations - Purely subjective fears not related to the material risks were not to be considered (i.e., idiosyncratic fears) - The court held that a reasonable person in the plaintiff's position, properly informed of the risks, would not have chosen to terminate the pregnancy - See paragraphs 2 to 19.

Cases Noticed:

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, appld. [para. 2].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 7].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 38].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 43].

Chatterton v. Gerson, [1981] 1 Q.B. 432, refd to. [para. 46].

Hills v. Potter, [1983] 3 All E.R. 716, refd to. [para. 46].

Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, [1985] 1 All E.R. 643 (H.L.), refd to. [para. 46].

Ellis v. Wallsend District Hospital (1989), 17 N.S.W.L.R. 553 (C.A.), refd to. [para. 47].

Canterbury v. Spence (1972), 464 F.2d 772 (D.C. Cir.), refd to. [para. 47].

Young v. Northern Territory of Australia (1992), 107 F.L.R. 264 (S.C.N.T.), refd to. [para. 47].

Bernard v. Char (1995), 903 P.2d 667 (S.C. HI), refd to. [para. 48].

Scott v. Bradford (1979), 606 P.2d 554 (Okla.), refd to. [para. 49].

Smith v. Reisig (1984), 686 P.2d 285 (Okla.), refd to. [para. 49].

Arena v. Gingrich (1987), 733 P.2d 75 (Or. Ct. App.), refd to. [para. 49].

Cobbs v. Grant (1972), 502 P.2d 1 (S.C. Cal.), refd to. [para. 66].

Martin v. Insurance Corp. of British Columbia (1979), 13 B.C.L.R. 163 (S.C.), refd to. [para. 75].

Statutes Noticed:

Limitation Act, R.S.B.C. 1979, c. 236, sect. 3(1)(a) [para. 74].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (6th Ed. 1983), pp. 171 [para. 40]; 172 [para. 41].

Fontigny, Nadine, When Yes Really Means Yes: The Law of Informed Con­sent in Canada Revisited (1996), 4 Health L. Rev. 17, p. 22 [para. 54].

Informed Consent -- A Proposed Standard for Medical Disclosure (1973), 48 N.Y.U.L. Rev. 548, p. 550 [paras. 3, 60].

Osborne, Philip H., Annotation to Arndt v. Smith (1995), 25 C.C.L.T.(2d) 264, p. 267 [para. 51].

Osborne, Philip H., Causation and the Emerging Canadian Doctrine of Informed Consent to Medical Treatment (1985), 33 C.C.L.T. 131, generally [para. 51].

Robertson, Gerald, Informed Consent Ten Years Later: The Impact of Reibl v. Hughes (1991), 70 Can. Bar Rev. 423, p. 426 [para. 53].

Counsel:

Christopher E. Hinkson, Q.C., and Andrew F. Wilkinson, for the appellant;

Nathan H. Smith, for the respondents.

Solicitors of Record:

Harper Grey Easton, Vancouver, B.C., for the appellant;

MacLeod Smith, Vancouver, B.C., for the respondents.

This appeal was heard on January 29, 1997, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On June 26, 1997, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Lamer, C.J.C., La Forest, L'Heureux-Dubé, Gonthier and Major, JJ., concurring) - see paragraphs 1 to 19;

Sopinka and Iacobucci, JJ., dissenting - see paragraphs 20 to 30;

McLachlin, J. - see paragraphs 31 to 76.