Cherry v. Borsman, (1992) 16 B.C.A.C. 93 (CA)

• Judge: Hutcheon, Hollinrake and Rowles, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 27, 1992
• Jurisdiction: British Columbia
• Citations: (1992), 16 B.C.A.C. 93 (CA);1992 CanLII 1545 (BC CA);94 DLR (4th) 487;[1992] 6 WWR 701;70 BCLR (2d) 273;18 CCLI 24;12 CCLT (2d) 137;16 BCAC 93;[1992] BCJ No 1687 (QL);34 ACWS (3d) 1030

Cherry v. Borsman (1992), 16 B.C.A.C. 93 (CA);

    28 W.A.C. 93

MLB headnote and full text

Elizabeth Rosanne Cherry, an infant by her mother and Guardian Ad Litem, Jody Helen Cherry and the said Jody Helen Cherry (plaintiffs/respondents) v. Dr. Hugh Borsman (defendant/appellant)

(CA009637; CA013351)

Indexed As: Cherry v. Borsman

British Columbia Court of Appeal

Hutcheon, Hollinrake and Rowles, JJ.A.

July 27, 1992.

Summary:

The defendant doctor carried out an abortion on the plaintiff mother. The abortion was unsuccessful and the plaintiff infant was born with serious and debilitating permanent mental and physical impairments. The mother sued the doctor in negligence on behalf of herself and the infant. The doctor admitted negligence in failing to detect the abortion was unsuccessful, but denied the abortion was negligently performed.

The British Columbia Supreme Court found the doctor liable in negligence to both the mother and the infant. The doctor appealed, submitting that the trial judge erred in finding a duty of care owed to the unborn foetus, in finding the infant's problems were caused by the doctor's negligence and in finding that the abortion was negligently performed. The mother and infant cross-appealed the damage award.

The British Columbia Court of Appeal dismissed the doctor's appeal against liability and allowed the doctor's appeal against damages in part and the plaintiffs' cross-appeal on damages in part. The court increased damages for future loss of income by the infant from $395,000 to $440,000 and set aside an award to the mother of $200,000 for loss of future income.

Damages - Topic 1548

General damages - Personal injury - Management of fund fee - A doctor negligently performed an unsuccessful abortion and the infant was born with serious and debilitating mental and physical disabilities - The trial judge awarded the infant a $225,500 management fee to manage the future care damage award - The British Columbia Court of Appeal affirmed the award - The court stated that "the discount rate under s. 51 of the Law and Equity Act is assumed to be a rate that will see the fund established for future care exhaust itself at the end of the plaintiff's life expectancy" - To award a management fee would not create an estate for the infant, as contended by the doctor - See paragraphs 84 to 90.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages - A doctor was negligent in an unsuccessful abortion - The infant was born with severe physical and mental disabilities - The trial judge awarded the mother $200,000 damages for future wage loss, based on the mother working only part-time until age 65 - The infant was awarded damages for the cost of living separate from her mother after age 19 - The British Columbia Court of Appeal set aside the damage award for lost future wages - The mother failed to prove any loss of income in the future or that there was a real risk of any such loss as a result of the doctor's negligence - See paragraphs 110 to 115.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages - An infant was born with serious and debilitating mental and physical disabilities as a result of a doctor's negligence - The trial judge awarded the infant $395,000 damages for lost future earnings, based on a life expectancy of 60 years - The British Columbia Court of Appeal increased the award to $440,000 - The trial judge did not err in using 60 years as the infant's life expectancy, but damages must be assessed on the basis that the infant would have enjoyed a normal earnings life span - The defendant could not benefit from the result of his own negligent act (i.e., argue that lost earnings be assessed on the basis of the reduced life expectancy he caused) - See paragraphs 122 to 133.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages - An infant plaintiff was incapable of ever working - The trial judge assessed future lost income on the basis of the female infant achieving two years of post-secondary education rather than the average lifetime earnings of a university educated male - The infant's counsel claimed that by the time the infant was of an employable age, wage disparity between men and women would have disappeared or at least diminished - The British Columbia Court of Appeal stated that although it may have reached a different conclusion than the trial judge, the trial judge's assessment was not clearly wrong and was therefore not to be disturbed - See paragraphs 134 to 146.

Damages - Topic 1565

General damages - Personal injury - Deductions or payments - Future income tax - Tax gross-up - The infant plaintiff was awarded damages for future care costs, nonpecuniary damages, loss of future income and management of fees - The trial judge, in awarding a sum for tax gross-up, "stacked" the income from the future care award on top of the "other" income, thereby insulating the future care income from the incidence of tax it would have suffered had all income been commingled - The British Columbia Court of Appeal held that the trial judge was correct in "stacking" the income from the future care award onto the "other" income - The obligation to maintain the integrity of the future care fund falls on the defendant - See paragraphs 91 to 102.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - A doctor negligently performed an unsuccessful abortion and the infant was born with serious and debilitating mental and physical disabilities - The trial judge awarded the infant damages equal to the cost of a home of her own, with a full-time attendant, after she reached the age of 19 - The doctor appealed, submitting that the evidence supported that a group home was in the infant's best interests - The British Columbia Court of Appeal held that there was evidence to support the trial judge's finding that a separate home was justified - See paragraphs 74 to 83.

Medicine - Topic 4245

Liability of practitioners - Negligence - Surgical operations by doctors - Abortion - A doctor unsuccessfully performed an abortion - The doctor miscalculated the age of the foetus and accordingly chose the wrong size curette to perform the abortion - The trial judge found the doctor negligent in miscalculating the date of conception and using the wrong sized curette - The British Columbia Court of Appeal held that there was evidence to support the trial judge's findings - See paragraphs 11 to 61.

Medicine - Topic 4257

Liability of practitioners - Negligence - Burden of proof - A doctor was negligent in performing an abortion - The infant was born with serious and debilitating physical and mental disabilities - The doctor claimed that the disabilities were not proved to be caused by his negligence - The trial judge relied on Snell v. Farrell (1990), 110 N.R. 200 (S.C.C.), to infer causation - The British Columbia Court of Appeal held that the trial judge did not err in inferring that the infant's disabilities were caused by the doctor's negligence - See paragraphs 69 to 71.

Medicine - Topic 4260.7

Liability of practitioners - Negligence - Duty of care to foetus - A doctor performed an unsuccessful abortion - The infant was born with serious physical and mental impairments - The infant and mother sued the doctor in negligence - The doctor claimed he owed no duty of care to the unborn foetus, because such a duty would conflict with the duty owed to the mother - The British Columbia Court of Appeal stated that a doctor performing an abortion "owes a duty of care to the mother to perform his task properly but at the same time owes a duty of care to the foetus not to harm it if he should fail in meeting the duty of care he owes to the mother." - Although a foetus has no cause of action as such, a cause of action arises upon its live birth - See paragraphs 62 to 68.

Torts - Topic 65

Negligence - Causation - Evidence - [See Medicine - Topic 4257 ].

Cases Noticed:

McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771 (C.A.), refd to. [para. 62].

Duval v. Seguin (1972), 26 D.L.R.(3d) 418 (Ont. H.C.), refd to. [para. 67].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 70].

Scarff v. Wilson (1990), 66 D.L.R.(4th) 52 (B.C.S.C.), refd to. [para. 92].

Nielsen et al. v. Kaufmann (1986), 13 O.A.C. 32; 54 O.R.(2d) 188 (C.A.), refd to. [para. 97].

McErlean v. Brampton (City) et al. (1987), 22 O.A.C. 186; 61 O.R.(2d) 396 (C.A.), refd to. [para. 97].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 128].

R. v. Sullivan and Lemay (1988), 31 B.C.L.R.(2d) 145 (C.A.), affd. in part [1991] 1 S.C.R. 489; 122 N.R. 166, refd to. [para. 129].

Dehler v. Ottawa Civic Hospital (1979), 25 O.R.(2d) 748, affd. 29 O.R.(2d) 677 (C.A.), refd to. [para. 129].

Anderson v. James et al. (1992), 7 B.C.A.C. 205; 15 W.A.C. 205; 87 D.L.R.(4th) 419 (C.A.), refd to. [para. 143].

Statutes Noticed:

Law and Equity Act, R.S.B.C. 1979, c. 224, sect. 51 [para. 85].

Counsel:

J.M. Lepp and P.T. McGivern, for the appellant;

F.H. Phippen, for the respondents.

This appeal and cross-appeal were heard on December 11-13, 1991, at Vancouver, B.C., before Hutcheon, Hollinrake and Rowles, JJ.A., of the British Columbia Court of Appeal.

On July 27, 1992, the following judgment was delivered By the Court.