Courtney v. Cleary, (2010) 299 Nfld. & P.E.I.R. 85 (NLCA)

• Judge: Green, C.J.N.L., Cameron and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: July 21, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 299 Nfld. & P.E.I.R. 85 (NLCA);2010 NLCA 46

Courtney v. Cleary (2010), 299 Nfld. & P.E.I.R. 85 (NLCA);

    926 A.P.R. 85

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. JL.019

Peter J. Cleary (appellant) v. Basil J. Courtney (respondent)

(09/85; 09/89; 2010 NLCA 46)

Indexed As: Courtney v. Cleary

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L., Cameron and Mercer, JJ.A.

July 21, 2010.

Summary:

The plaintiff was treated between July 1999 and April 2000 for what the defendant doctor diagnosed as an apthous ulcer inside of his mouth. The lesion did not respond to treatment. Repeated visits to the doctor resulted in a referral to a dentist, as the doctor was concerned that the plaintiff's poor teeth were an issue. In April 2000, the dentist referred the plaintiff to an oral surgeon. A biopsy diagnosed a cancerous mouth lesion. The plaintiff underwent radical mouth, jaw, neck and chest surgery. That surgery, followed by radiation treatment, left the plaintiff with permanent and significant deficits. The plaintiff brought a medical negligence action for damages against the doctor. In particular, the plaintiff claimed that had the doctor referred him for a biopsy earlier, his cancer would have been detected and treated earlier. The defendant admitted that he should have referred the plaintiff for a biopsy earlier, but argued that an earlier biopsy would not have made any difference because the treatment (surgery and radiation) would have been the same. The doctor argued that the untimely biopsy did not cause the damages suffered.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2009), 287 Nfld. & P.E.I.R. 311; 885 A.P.R. 311, found the doctor negligent in failing to order a biopsy earlier. The plaintiff was not contributorily negligent and there was a causal connection between the negligence and the damages suffered. The court assessed damages accordingly. The doctor appealed, submitting that the trial judge erred in finding a causal connection between his negligence and the plaintiff's loss, and, alternatively, erred in assessing damages. The plaintiff cross-appealed the trial judge's limiting of pre-judgment interest on his past earnings loss award.

The Newfoundland and Labrador Court of Appeal, Mercer, J.A., dissenting in part, dismissed the defendant's appeal respecting causation, but allowed the appeal respecting damages to the limited extent of reducing the award for pre-trial income loss and loss of future earning capacity. The plaintiff's appeal respecting pre-judgment interest was dismissed.

Damage Awards - Topic 101

Injury and death - Head injuries - Nerve damage - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 111

Injury and death - Head injuries - Jaw - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 112

Injury and death - Head injuries - Teeth - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 115

Injury and death - Head injuries - Tongue - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 116

Injury and death - Head injuries - Mouth - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 117

Injury and death - Head injuries - Facial injuries (incl. scarring and disfigurement) - As a result of a doctor's negligence in failing to refer the plaintiff for a timely biopsy of an ulcerated lesion in his mouth, the plaintiff's oral cancer was not discovered until it was Stage 4 - The plaintiff underwent radical mouth, jaw, neck and chest surgery, followed by radiation treatment - The surgery required removal of the plaintiff's left jaw, all of his teeth (cannot be replaced by false teeth) and half of his tongue - The plaintiff suffered significant pain during the six month surgery recovery period - He was left with facial disfigurement, a speech impediment, a compromised ability to chew food and nerve damage to the left side of his face (no temperature sensation), making him susceptible to frostbite - The removal of salivary glands left him with dry mouth and no sense of taste - His left pectoral muscle was removed from his chest, leaving his chest unprotected and ultra sensitive to touch and excruciatingly painful when pressure was applied to it (seatbelt strap, etc.) - The plaintiff had reduced mobility on his left side (unable to raise left arm), diminished strength and a compromised ability to drive - Outdoor activities were curtailed, as well as employment opportunities and the facial disfigurement caused the plaintiff to socially withdraw - The plaintiff sought $175,000 general damages for non-pecuniary loss - The upper limit was now $330,000 - The doctor submitted that $60,000 was appropriate - The trial judge awarded $165,000 general damages for non-pecuniary loss - The Newfoundland and Labrador Court of Appeal dismissed the appeal from non-pecuniary general damages - There were no grounds to disturb the trial judge's award - See paragraphs 46 to 49.

Damage Awards - Topic 118

Injury and death - Head injuries - Smell and taste - [See Damage Awards - Topic 117 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Damage Awards - Topic 493 ].

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 493 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - As a result of a doctor's negligence in failing to refer the plaintiff for a timely biopsy of an ulcerated lesion in his mouth, the plaintiff's oral cancer was not discovered until it was Stage 4 - The plaintiff underwent radical mouth, jaw, neck and chest surgery, followed by radiation treatment - The surgery required removal of the plaintiff's left jaw, all of his teeth (cannot be replaced by false teeth) and half of his tongue - The plaintiff suffered significant pain during the six month surgery recovery period - He was left with facial disfigurement, a speech impediment, a compromised ability to chew food and nerve damage to the left side of his face (no temperature sensation), making him susceptible to frostbite - The removal of salivary glands left him with dry mouth and no sense of taste - His left pectoral muscle was removed from his chest, leaving his chest unprotected and ultra sensitive to touch and excruciatingly painful when pressure was applied to it (seatbelt strap, safety harness, etc.) - The plaintiff had reduced mobility on his left side (unable to raise left arm), diminished strength and a compromised ability to drive - He had to drink water every few minutes, requiring frequent bathroom breaks - The plaintiff was formerly employed as a pipefitter - His physical deficits affected his ability to perform normal pipefitter work - He was limited to the lightest of pipefitting work, and then only with significant accommodation - The plaintiff would likely have gone to Alberta for readily available and lucrative work, as he had done in the past - He was incapable of that work, and offshore work, due to the physical demands - The trial judge awarded the plaintiff $568,987 for lost earnings from 2001 to the date of trial (2008), when he was 61 years of age - For lost future earnings to retirement at age 65, he was awarded the present value of $68,020 per year, plus 19.5% for pension and fringe benefits - He was also awarded $2,700 for past loss of housekeeping capacity, the present value of $300 per year for 14 years for future loss of housekeeping capacity, and $30,738.11 special damages for medical costs - The Newfoundland and Labrador Court of Appeal held that the trial judge erred in applying a balance of probabilities test to determine pre-trial loss of income and made a palpable and overriding error in assessing loss of earning capacity - Pre-trial income loss was reduced to $426,740 - Future loss of earning capacity was reduced to the present value of $32,650 for four years using a 1.6% discount rate plus 19.5% for pension and fringe benefits - See paragraphs 50 to 75.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 493 ].

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 117 ].

Damages - Topic 1504

General damages - General principles - Pleading and proof - [See Damage Awards - Topic 493] .

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 493] .

Damages - Topic 1554

General damages - General damages for personal injury - Calculation and method of assessment - General principles - [See Damage Awards - Topic 493] .

Interest - Topic 5011

Interest as damages (prejudgment interest) - General principles - Interest on nonpecuniary general damages - A plaintiff was awarded pre-judgment interest on non-pecuniary damages for the date of injury in 2001 to the date of trial in 2008 - The defendant appealed, submitting that since damages were assessed in date-of-judgment dollars, the plaintiff would be over-compensated by awarding pre-judgment interest from the date of injury - The Newfoundland and Labrador Court of Appeal recognized that the full rate of pre-judgment interest added to non-pecuniary damages calculated in date-of-judgment dollars could result in over-compensation - However, the court accepted that "if this results in over compensation it was the intention of the Legislature" - Mercer, J.A., dissenting on this issue, opined that a full panel of the court needed to address the issue of over-compensation where pre-judgment interest was "intended in part to compensate for the effects of inflation between the date of the event giving rise to the cause of action and the date of judgment" - Mercer, J.A., suggested that "the appropriate solution is for the trial judge to recognize the compensation for inflation inherent in basing an awarded strictly on the trilogy limit determined at the date of trial, and for the trial judge, bearing in mind the effect of the Judgment Interest Act, to adjust the award to the extent required to ensure that full compensation for inflation is assured and double recovery is avoided" - See paragraphs 82 to 96, 103 to 115.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff visited his doctor in July complaining of a sore mouth - He saw his doctor again in August, September, January and April - The doctor diagnosed an apthous ulcer, when in fact a biopsy arranged in April by the plaintiff's dentist disclosed cancer - The plaintiff was found negligent for, inter alia, failing to refer the plaintiff for a biopsy in September (if not August) - The plaintiff underwent radical mouth, jaw, neck and chest surgery - That surgery, followed by radiation treatment, left the plaintiff with permanent and significant deficits - The plaintiff brought a medical negligence action for damages against the doctor - In particular, the plaintiff claimed that had the doctor referred him for a biopsy earlier, his cancer would have been detected and treated earlier - The defendant admitted that he should have referred the plaintiff for a biopsy earlier (January), but argued that a biopsy at that time would not have made any difference because the treatment and result would have been the same (i.e., causation not established) - The trial judge held that causation was established, where "but for" the late biopsy, earlier detection might have led to less radical treatment and less debilitating results (i.e., while tumour still at Stage 1 rather than at Stage 4) - The Newfoundland and Labrador Court of Appeal held that the trial judge did not err in finding causation had been established - The correct law was applied and there was no palpable and overriding error in assessing the evidence - See paragraphs 16 to 44.

Medicine - Topic 4260.1

Liability of practitioners - Negligence or fault - Taking of medical history - [See Medicine - Topic 4241.2 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See Medicine - Topic 4241.2 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Ring v. Canada (Attorney General) et al. (2010), 297 Nfld. & P.E.I.R. 86; 918 A.P.R. 86; 2010 NLCA 20, refd to. [para. 15].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 15].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 15].

Reid et al. v. Joy et al. (1999), 181 Nfld. & P.E.I.R. 246; 550 A.P.R. 246 (Nfld. C.A.), refd to. [para. 15].

Young v. Wells et al. (2007), 264 Nfld. & P.E.I.R. 217; 801 A.P.R. 217; 2007 NLCA 23, refd to. [para. 15].

Driscoll v. Morgan et al. (2007), 267 Nfld. & P.E.I.R. 344; 811 A.P.R. 344; 2007 NLCA 39, refd to. [para. 15].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 17].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333, refd to. [para. 17].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142 (C.A.), refd to. [para. 18].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 19].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 20].

Aristorenas v. Comcare Health Services et al. (2006), 216 O.A.C. 161; 83 O.R.(3d) 282 (C.A.), leave to appeal refused (2007), 368 N.R. 394; 233 O.A.C. 398 (S.C.C.), refd to. [para. 21].

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. [para. 49].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 50].

Reilly v. Lynn (2003), 178 B.C.A.C. 69; 292 W.A.C. 69; 2003 BCCA 49, refd to. [para. 68].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 78].

Goodyear and House Ltd. v. Eaton et al. (1971), 2 Nfld. & P.E.I.R. 56 (Nfld. T.D.), refd to. [paras. 80, 105].

Prowse v. Newfoundland (1900), 8 Nfld. L.R. 386, refd to. [para. 80, footnote 9].

Whiteway v. Newfoundland (1901), 8 Nfld. L.R. 482, refd to. [para. 80, footnote 9].

Bank of America Canada v. Mutual Trust Co. et al., [2002] 2 S.C.R. 601; 287 N.R. 171; 159 O.A.C. 1; 2002 SCC 43, refd to. [paras. 80, 105, footnote 10].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 152 D.L.R.(4th) 453 (C.A.), refd to. [para. 80, footnote 10].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 83, footnote 12].

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. 83, footnote 12].

Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd., [1979] 2 S.C.R. 787; 27 N.R. 193, refd to. [para. 85].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; 129 D.L.R.(3d) 263, refd to. [paras. 86, 107].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 86].

Ter Neuzen v. Korn - see Neuzen v. Korn.

Power et al. v. McDonald et al. (1992), 96 Nfld. & P.E.I.R. 181; 305 A.P.R. 181 (Nfld. T.D.), refd to. [para. 89].

Mayo v. Harding (1993), 111 Nfld. & P.E.I.R. 271; 348 A.P.R. 271 (Nfld. T.D.), refd to. [para. 91].

Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93; 494 A.P.R. 93 (N.L.C.A.), refd to. [para. 91].

Wall v. McGrath (1996), 139 Nfld. & P.E.I.R. 208; 433 A.P.R. 208 (Nfld. T.D.), refd to. [para. 91].

Robinson et al. v. Pearlgate Lanes Ltd. (1995), 130 Nfld. & P.E.I.R. 184; 405 A.P.R. 184 (Nfld. T.D.), refd to. [para. 91].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [paras. 92, 104].

Borland v. Muttersbach (1985), 12 O.A.C. 84; 53 O.R.(2d) 129 (C.A.), refd to. [para. 92].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 92].

Hiltz and Seamone Co. v. Nova Scotia (Attorney General) et al. (1999), 173 N.S.R.(2d) 341; 527 A.P.R. 341 (C.A.), refd to. [para. 92].

Koukounakis v. Reid - see Koukounakis et al. v. Stainrod.

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), refd to. [paras. 92, 106].

Birkett v. Hayes, [1982] 1 W.L.R. 816 (C.A.), refd to. [para. 93].

Baldwin v. Chalker (1984), 48 Nfld. & P.E.I.R. 86; 142 A.P.R. 86 (Nfld. C.A.), refd to. [para. 105].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 106].

Leischner v. West Kootenay Power & Light Co., [1986] 3 W.W.R. 97 (B.C.C.A.), refd to. [para. 108].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 113].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 113].

Statutes Noticed:

Judgment Interest Act, R.S.N.L. 1990, c. J-2, sect. 3(1), sect. 3(2)(b), sect. 3(3), sect. 4 [para. 81].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth, and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 78 [para. 69].

Rainaldi, Linda D., Remedies in Tort (1987), vol. 4, para. 87 [para. 55].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 431 [para. 112].

Waddams, Stephen M., The Law of Damages (2nd Ed. 1984), para. 7.660 [para. 108].

Williston, Samuel, A Treatise on the Law of Contracts (3rd Ed. 1968), vol. 11, p. 312 [para. 78].

Counsel:

Irene S. Muzychka and Liam P. O'Brien, for the appellant;

David P. Goodland, for the respondent.

This appeal and cross-appeal were heard on March 16-17, 2010, before Green, C.J.N.L., Cameron and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On July 21, 2010, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Cameron, J.A. (Green, C.J.N.L., concurring) - see paragraphs 1 to 102;

Mercer, J.A., dissenting in part - see paragraphs 103 to 115.