Carlsen v. Southerland, 2006 BCCA 214

• Judge: Donald, Huddart and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 19, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 214;(2006), 225 B.C.A.C. 150 (CA)

Carlsen v. Southerland (2006), 225 B.C.A.C. 150 (CA);

    371 W.A.C. 150

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. MY.024

Koren Frances Carlsen (respondent/plaintiff) v. Stephen Southerland (appellant/defendant)

(CA032675; 2006 BCCA 214)

Indexed As: Carlsen v. Southerland

British Columbia Court of Appeal

Donald, Huddart and Kirkpatrick, JJ.A.

May 3, 2006.

Summary:

Carlsen brought an action for damages for personal injuries against Southerland after he cut an artery and vein while performing a discectomy on her. The amount of damages was agreed on. The only issue at trial was liability.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. Uned. 48, found that Southerland was liable. Southerland appealed.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - While performing a discectomy on Carlsen, Southerland cut an artery and vein - Carlsen suffered complications shortly after surgery - A vascular surgeon repaired the cuts - Carlsen was left permanently disabled - She sued Southerland - The only issue at trial was liability - The trial judge indicated that because the mistake could have killed Carlsen, the standard of care was elevated - The law required a level of excellence much higher than the level of the small number of spinal surgeons who occasionally cut a vein or artery - The obvious precaution that Southerland should have taken was not to let his knife penetrate beyond where it should - Southerland was found liable - He appealed - The British Columbia Court of Appeal allowed the appeal and ordered a new trial - The trial judge's formulation of the standard of care amounted to a standard of perfection or a guarantee that the law had never imposed on physicians and surgeons - The trial judge had improperly focussed on the surgery's result and not on the precise manner in which Southerland had failed to meet the appropriate standard of care.

Torts - Topic 35

Negligence - Standard of care - Medical doctors and medical personnel - [See Medicine - Topic 4242 ].

Cases Noticed:

Wilson v. Swanson (1956), 5 D.L.R.(2d) 113 (S.C.C.), appld. [para. 11].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 14].

Greaves & Co. (Contractors) v. Baynham Meikle & Partners, [1975] 1 W.L.R. 1095; [1975] 3 All E.R. 99 (C.A.), refd to. [para. 15].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 17].

Counsel:

J.M. Lepp, Q.C., and D.W. Pilley, for the appellant;

M.J. Velletta and G.T. Rhone, for the respondent.

This appeal was heard on April 19, 2006, at Victoria, British Columbia, by Donald, Huddart and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Kirkpatrick, J.A., delivered the following written reasons for judgment for the court on May 3, 2006.