Degennaro v. Oakville Trafalgar Memorial Hospital et al., (2011) 278 O.A.C. 147 (CA)

• Judge: LaForme, Rouleau and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 18, 2011
• Jurisdiction: Ontario
• Citations: (2011), 278 O.A.C. 147 (CA);2011 ONCA 319

Degennaro v. Trafalgar Hospital (2011), 278 O.A.C. 147 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MY.005

Diane Degennaro and Paul Degennaro, Justin Degennaro and Ryan Degennaro, minors by their Litigation Guardian, Diane Degennaro (plaintiffs/responding parties/respondents) v. Oakville Trafalgar Memorial Hospital and Halton Healthcare Services (defendants/moving parties/appellants)

(C50853; 2011 ONCA 319)

Indexed As: Degennaro v. Oakville Trafalgar Memorial Hospital et al.

Ontario Court of Appeal

LaForme, Rouleau and Watt, JJ.A.

April 26, 2011.

Summary:

The plaintiff, who was visiting with a patient in a hospital, was injured when she fell off a bed and cracked her sacrum. She experienced chronic pain from the injury and was diagnosed with fibromyalgia several years later. The plaintiff sued the hospital and Halton Healthcare Services (defendants) for damages for her injuries. The main issue at trial was causation because the plaintiff had been involved in a car accident between the initial injury and the fibromyalgia diagnosis.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. G05, found that the sacrum injury was the cause of the fibromyalgia and awarded substantial damages for current and future costs of care as well as lost income and non-pecuniary damages totalling over $3 million. The defendants appealed on liability and the award of $1.7 million for the costs of future care.

The Ontario Court of Appeal allowed the appeal in part and varied the amount awarded for the costs of future care.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - The plaintiff, who was visiting with a patient in a hospital, injured her sacrum in a fall - She suffered chronic pain from the injury and developed fibromyalgia several years later - The plaintiff sued the hospital and Halton Healthcare Services (defendants) for damages - The trial judge found that the sacrum injury was the cause of the fibromyalgia and awarded damages accordingly - The defendants appealed, arguing that the damages flowing from the fibromyalgia were not foreseeable because the fibromyalgia developed four years after the fall and required an intervening traumatic event, the car accident - The defendant argued that the trial judge ought to have applied Mustapha v. Culligan of Canada (2008 SCC) and found that the damages were too remote to warrant recovery - The Ontario Court of Appeal rejected this submission - The trial judge did not misapply Mustapha, which did not stand for the proposition that a defendant needed to foresee all of the damage suffered by the plaintiff - Rather, the defendant needed to reasonably foresee damages suffered by a person of reasonable fortitude - Where, as here, the damages suffered were more extensive because the plaintiff was "thin-skulled", the defendant was nonetheless liable - See paragraphs 25 to 27.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - ''Thin skull'' or ''crumbling skull'' - [See Damages - Topic 528 ].

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See Evidence - Topic 540 and second Evidence - Topic 7002 ].

Evidence - Topic 540

Presentation of evidence - Exhibits - General - The Ontario Court of Appeal stated that "It is not unusual for counsel, at the outset of a civil trial, to mark one or more volumes of bound documents as exhibits. These are normally marked as exhibits subject to proof. This will often allow for a better and more orderly management of the exhibits filed at trial. This case highlights the importance of ensuring that, at the conclusion of the trial, the status of the many documents contained in those volumes is clear (i.e. whether they have been proven and can be relied on by the trial judge in reaching a decision). This is particularly so where, as in this case, they are referred to and relied on in final submissions and they are critical to the quantification of the claim for costs of future care ..." - See paragraph 32.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - The plaintiff was successful in a personal injury suit against the defendants - The defendants appealed, arguing that the trial judge erred in rejecting the evidence of the defendants' medical experts because they were not "treating physicians" - The defendants argued that the fact that an expert was a treating physician was not a proper basis to prefer that evidence, and should lead a court to assign less weight to that expert's evidence and not more - The defendants cited case law allegedly standing for the proposition that a treating physician who has a relationship with the plaintiff may not have the same objectivity as an independent expert - The defendants maintained that rejecting the evidence of independent experts because they were not treating physicians, as the trial judge did in this case, created unacceptable unfairness for defendants - The Ontario Court of Appeal rejected that submission - The trial judge did not simply reject the defendants' experts solely on the basis that they were the treating physicians - Rather, the trial judge considered a number of factors - Nor did the case law cited by the defendants support their position - See paragraphs 21 to 24.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - A trial judge in a personal injury suit, awarded the plaintiff $1.7 million for the costs of future care, adopting figures from plaintiff's experts reports which had been marked as exhibits - The defendants appealed, arguing that those damages were not proven - The defendants claimed that, although the expert reports were marked as exhibits, the court could make no use of them because no one testified to their accuracy, and the factual underpinnings for the reports were not proven at trial - The Ontario Court of Appeal held that the status of the reports was unclear and there was confusion as to their evidentiary value; therefore, the trial judge erred in relying on the reports - However, since the parties accepted the accuracy of the methodology used in the reports and the only issue was whether the plaintiff had proven the items listed therein, the court saw no basis to reject the reports in their entirety in the appeal court reassessing the appropriate amount of damages for the cost of future care - The court reduced the award by $374,640 - See paragraphs 28 to 53.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of - [See second Evidence - Topic 7002 ].

Cases Noticed:

Williams et al. v. Bowler et al., [2005] O.T.C. 680 (Sup. Ct.), refd to. [para. 22].

Greer v. Horton (1996), 18 O.T.C. 332; 38 C.C.L.I.(2d) 251 (Gen. Div.), refd to. [para. 22].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130, refd to. [para. 25].

Wunsche v. Wunsche (1994), 70 O.A.C. 380; 18 O.R.(3d) 161 (C.A.), dist. [para. 41].

Counsel:

Deborah Berlach and Emily McKernan, for the appellants;

Paul J. Pape and Shantona Chaudhury, for the respondents.

This appeal was heard on January 18, 2011, before LaForme, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Rouleau, J.A., on April 26, 2011.