Bertin v. Kristoffersen et al., (2001) 244 N.B.R.(2d) 315 (CA)

• Judge: Turnbull, Drapeau and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 15, 2001
• Jurisdiction: New Brunswick
• Citations: (2001), 244 N.B.R.(2d) 315 (CA);2001 NBCA 118

Bertin v. Kristoffersen (2001), 244 N.B.R.(2d) 315 (CA);

    244 R.N.-B.(2e) 315; 634 A.P.R. 315

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[French language version follows English language version]

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

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Temp. Cite: [2001] N.B.R.(2d) TBEd. DE.031

Carolyn Bertin (plaintiff/appellant) v. Dr. Arthur Kristoffersen, Region 2 Hospital Corporation, doing business under the name and style the Atlantic Health Sciences Corporation and Saint John Regional Hospital and St. Joseph's Hospital (defendants/respondents)

(97/00/CA; 2001 NBCA 118)

Indexed As: Bertin v. Kristoffersen et al.

New Brunswick Court of Appeal

Turnbull, Drapeau and Robertson, JJ.A.

December 20, 2001.

Summary:

The plaintiff had a mole removed in 1992. The pathology lab failed to send a diagnosis of malignant melanoma to the plaintiff's doctor, Kristoffersen. Dr. Kristof­fersen did not follow up with the lab. The plaintiff assumed that the mole was benign. Subse­quently, the plaintiff's file was trans­ferred to Dr. Jewers. In 1998, the melanoma tumour recurred at the scar of the first ex­clusion. The tumour extended into the layers of fat cells near the plaintiff's right knee. There­fore, a wider excision of the tumour and surrounding tissue was necessary than would have been in 1992. Lymph nodes from the plaintiff's right thigh were also removed to reduce the chances that the melanoma would be terminal. The plaintiff sued Kristoffersen, Jewers and the lab for negligence.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2000] N.B.R.(2d) (Supp.) No. 32, held that Kristoffersen and the lab were equally liable for the plaintiff's damages. The claim against Jewers was dismissed. The court assessed damages. The plaintiff appealed the damages award.

The New Brunswick Court of Appeal, Robertson, J.A., dissenting as to the remedy, allowed the appeal and ordered a new trial restricted to determining certain issues. Robertson, J.A., would have remitted the issues to the trial judge.

Damages - Topic 820

Assessment - General - Global awards - The trial judge held that the plaintiff's doctor and a pathology lab were each negligent for fail­ing to provide timely and appropriate care for a malignant melanoma - The trial judge made a global award of $15,000 for cost of future care and reduced capacity to do heavy house­work - The New Brunswick Court of Appeal held that the trial judge erred by making a global award for two distinct heads of dam­ages - It was unclear how much was allowed for each loss - This was compounded by the trial judge's failure to articulate a rational connection between the evidence and the global award and none could be distilled from his factual findings - See paragraphs 30 to 35.

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of house­keeping capacity - The New Brunswick Court of Appeal held that a plaintiff could not recover damages for loss of home­mak­ing capacity for lost years (i.e., the period during which an injured party would have lived but for the tortfeasor's negligence) - The court stated that "While any depriva­tion of the opportunity to receive pecuniary benefits, including income and pension payments, during the lost years will cause an injured party to lose something of value, the same cannot be said of his or her loss of homemaking capacity during that period. After all, the award is for the pecuniary losses suffered by a living plain­tiff, not his or her de­pendants or heirs." - See paragraphs 43 to 46.

Damages - Topic 1558

General damages - General damages for personal injury - Calculation and method of assessment - Evidence and actuarial evidence - The New Brunswick Court of Appeal stated that "in assessing any of [the plaintiff's] damages for pecuniary loss in the future, including her loss of home­mak­ing capacity, the judge should not be al­lergic to using actuarial calculations simply because some of the underlying as­sumptions lack certainty. ... This Court has previously asserted that, whenever possible, actuarial calculations should be used to assess damages for future pecuni­ary losses. That is not to say that a con­ventional award is never in order; it might be an appropriate remedy in respect of partial loss of capacity to perform certain tasks around the home. I have in mind a situa­tion where the injured party remains capa­ble of completing some tasks, but at a significantly slower pace." - See paragraph 34.

Damages - Topic 1684

General damages - Evidence - Actuarial evidence - [See Damages - Topic 1558 ].

Practice - Topic 9229.1

Appeals - New trials - Grounds - Bias (incl. reasonable apprehension of bias) - The trial judge held that the plaintiff's doctor and a pathology lab were each negligent for failing to provide timely and appropriate care for a malignant melanoma in her right leg - The trial judge assessed damages - The New Brunswick Court of Appeal held that the trial judge erred in making a global award for two distinct heads of damages, assessing the evidence related to the plaintiff's claim for damages for future loss of earning capacity and assessing the evidence concerning the extent to which the defendants' negligence reduced the plaintiff's life expectancy - The plaintiff opposed further involvement by the trial judge, fearing that he might no longer have an open mind on the issues requiring reconsideration - The court or­dered a new trial restricted to determin­ing certain issues - See paragraph 28.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 2].

R. v. Sussex Justices: Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 28].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [paras. 30, 61].

Donnelly v. Bélanger (1991), 122 N.B.R.(2d) 48; 306 A.P.R. 48 (C.A.), refd to. [paras. 30, 61].

Ritchie v. Thompson (1994), 155 N.B.R.(2d) 35; 398 A.P.R. 35 (C.A.), refd to. [para. 30].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 31].

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. [paras. 31, 70].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247 (C.A.), leave to appeal denied (2001), 271 N.R. 396 (S.C.C.), refd to. [paras. 32, 67].

Wells v. Wells et al. - see Page v. Sheer­ness Steel Co.

Page v. Sheerness Steel Co., [1999] 1 A.C. 345; 230 N.R. 292 (H.L.), refd to. [para. 34].

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 36].

Young v. Fletcher and Lakeburn Lumber Retail Ltd. (1995), 161 N.B.R.(2d) 116; 414 A.P.R. 116 (C.A.), refd to. [para. 36].

Bartlett v. Nova Scotia Steel Co. (1907), 38 S.C.R. 336, affing. (1904), 39 N.S.R. 456 (C.A.), refd to. [para. 42].

Confederation Life Insurance Co. v. Woo Investments Inc. et al. (1994), 123 Sask.R. 150; 74 W.A.C. 150 (C.A.), leave to appeal denied (1995), 185 N.R. 157; 134 Sask.R. 320; 101 W.A.C. 320 (S.C.C.), refd to. [para. 42].

Gabriel v. Nuclear Electric plc., [1995] NLOR No. 2405 (Q.B.), refd to. [para. 45].

Phipps v. Brooks Dry Cleaning Services Ltd., [1995] NLOR No. 377 (Q.B.), refd to. [para. 45].

Phipps v. Brooks Dry Cleaning Services Ltd., [1996] NLOR No. 3674 (C.A.), refd to. [para. 45].

Pugsley v. Albert (1996), 179 N.B.R.(2d) 241; 455 A.P.R. 241 (C.A.), refd to. [para. 50].

R. v. Peter-Paul (T.) (1998), 196 N.B.R.(2d) 292; 501 A.P.R. 292 (C.A.), leave to appeal denied (1998), 235 N.R. 392; 204 N.B.R.(2d) 400; 520 A.P.R. 400 (S.C.C.), refd to. [para. 52].

Ross v. Human Rights Board of Inquiry (N.B.) (1990), 110 N.B.R.(2d) 107; 276 A.P.R. 107 (C.A.), refd to. [para. 53].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 61].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 61].

Bossé v. Léger, Thibodeau and As­somption Compagnie Mutuelle d'As­surance-Vie (1987), 82 N.B.R.(2d) 80; 208 A.P.R. 80 (C.A.), refd to. [para. 64].

Snelgrove v. Steinberg Inc. (1995), 85 O.A.C. 365; 43 C.P.C.(3d) 365 (Ont. C.A.), refd to. [para. 67].

Children's Aid Society of Metropolitan Toronto v. M.A. (1993), 14 C.P.C.(3d) 214 (Ont. Gen. Div.), refd to. [para. 67].

Toronto Window Manufacturing Co. v. Goldman (1986), 17 O.A.C. 268 (Div. Ct.), refd to. [para. 67].

De Vos v. Robertson et al. (1997), 103 O.A.C. 231; 14 C.P.C.(4th) 105 (C.A.), refd to. [para. 68].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 68].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), refd to. [para. 69].

Brunswick Data Inc. v. New Brunswick (1999), 209 N.B.R.(2d) 196; 535 A.P.R. 196 (C.A.), refd to. [para. 69].

Ross v. New Brunswick Teachers' Associ­ation et al. (2001), 238 N.B.R.(2d) 112; 617 A.P.R. 112; 201 D.L.R.(4th) 75 (C.A.), refd to. [para. 73].

R. v. Englehart (A.) (1998), 199 N.B.R.(2d) 375; 510 A.P.R. 375 (C.A.), refd to. [para. 76].

Authors and Works Noticed:

Cooper-Stephenson, Personal Injury Dam­ages in Canada (2nd Ed. 1995), p. 359 [para. 43].

Halsbury's Laws of England (3rd Ed. 1959), vol. 20, paras. 889, 891 [para. 64].

Seng-Jaw Soong, Survival Following Melanoma Recurrence (1998), p. 67:228-233 [para. 24].

Counsel:

Barry R. Morrison, Q.C., for the appellant;

Rodney J. Gillis, Q.C., for the respondent, Dr. Kristoffersen;

John P. Barry, Q.C., for the respondent, Region 2 Hospital Corporation.

This appeal was heard on February 15, 2001, by Turnbull, Drapeau and Robertson, JJ.A., of the New Brunswick Court of Ap­peal. On December 20, 2001, the judg­ment of the Court of Appeal was delivered and following opinions were filed:

Drapeau, J.A. (Turnbull, J.A., concur­ring) - see paragraphs 1 to 56;

Robertson, J.A., dissenting as to remedy - see paragraphs 57 to 78.