Frazer v. Haukioja,

• Jurisdiction: Ontario
• Judge: MacPherson, Simmons and LaForme, JJ.A.
• Neutral Citation: 2010 ONCA 249
• Citation: 2010 ONCA 249,(2010), 261 O.A.C. 138 (CA),101 OR (3d) 528,317 DLR (4th) 688,73 CCLT (3d) 167,[2010] OJ No 1334 (QL),187 ACWS (3d) 306,261 OAC 138,(2010), 261 OAC 138 (CA),101 O.R. (3d) 528,317 D.L.R. (4th) 688,261 O.A.C. 138,[2010] O.J. No 1334 (QL)
• Date: 24 November 2009
• Court: Court of Appeal (Ontario)

Frazer v. Haukioja (2010), 261 O.A.C. 138 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AP.015

Grant Frazer and Jennifer Smith (respondents) v. A.H.O. Haukioja (appellant)

(C49539; 2010 ONCA 249)

Indexed As: Frazer et al. v. Haukioja

Ontario Court of Appeal

MacPherson, Simmons and LaForme, JJ.A.

April 7, 2010.

Summary:

The plaintiff sued the defendant emergency room physician for medical malpractice, for failing to advise him when a radiology report became available which showed that he had fractured his ankle.

The Ontario Superior Court, in decisions reported [2008] O.T.C. Uned. G92 and [2008] O.T.C. Uned. S72, allowed the action, awarding the plaintiff damages and costs. The court also awarded the plaintiff's spouse damages under the Family Law Act. The physician appealed.

The Ontario Court of Appeal dismissed the appeal.

Damage Awards - Topic 200

Injury and death - Psychological injuries - Anxiety state or neurosis - The plaintiff sued an emergency room physician (the defendant) for damages, because the defendant failed to disclose in a timely manner the fact that a radiologist had noticed an ankle fracture on an X-ray - The plaintiff claimed to have developed psychiatric problems (anxiety disorder with features of panic disorder) because of the non-disclosure - A trial judge allowed the action, awarding inter alia, $2,500 general damages for pain and suffering (ankle injury), $150,000 general damages for the psychiatric injury, $283,378 for past lost income and $1,298,429.94 for future loss of income - The defendant appealed, arguing that the award for lost income should be reduced because the trial judge failed to consider that the orthopaedic injuries suffered by the plaintiff would themselves have resulted in him losing both past and future income, apart from the psychiatric injuries caused by the doctor's negligence - He also claimed that the trial judge failed to make adequate deductions for other specific contingencies - The Ontario Court of Appeal rejected both submissions and dismissed the appeal - See paragraphs 62 to 69.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 200 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 200 ].

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - [See second Medicine - Topic 4241.2 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See Damage Awards - Topic 200 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 200 ].

Damages - Topic 2542

Torts affecting the person - Particular damage claims - Nervous shock - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In a medical malpractice suit, the trial judge held that causation was established on the "but for" test - However, in the alternative, he found that if he was wrong to apply the "but for" test, it would be appropriate to consider whether liability could be imposed by application of the material contribution test - He then found that the plaintiff had proven causation on the material contribution test - The defendant appealed - The Ontario Court of Appeal agreed the trial judge erred in applying the "material contribution" test after he reasoned his way through the "but for" test, however, that error had no impact on his final decision - There was no basis to interfere with the trial judge's decision - See paragraphs 25, 29 and 42 to 50.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff sued an emergency room physician (the defendant) for damages, because the defendant failed to disclose in a timely manner the fact that a radiologist had noticed an ankle fracture on an X-ray - The plaintiff claimed to have developed psychiatric problems because of the non-disclosure - A trial judge found the defendant breached the standard of care in failing to advise the plaintiff of the talar fracture, resulting in the psychiatric injuries - The defendant appealed, arguing that his actions did not cause the psychiatric injury (factual causation - "but for") and, alternatively, that the plaintiff's damages were too remote to be covered (legal causation/remoteness) - The Ontario Court of Appeal dismissed the appeal - The trial judge correctly applied the "but for" test and it was foreseeable that the defendant's non-disclosure could give rise to a recognized psychiatric illness - See paragraphs 25, 29 and 32 to 61.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4251.3

Liability of practitioners - Negligence or fault - Failure to follow up - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4252.4

Liability of practitioners - Negligence or fault - Emergency room treatment - [See second Medicine - Topic 4241.2 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - The plaintiff sued an emergency room physician (the defendant) for damages, because the defendant failed to disclose in a timely manner the fact that a radiologist had noticed an ankle fracture on an X-ray - The plaintiff claimed to have developed psychiatric problems because of the non-disclosure - A trial judge allowed the action, assessed damages and awarded costs to the defendant and his wife (Family Law Act claim) of $929,168.76 (incl. disbursements and GST) - The defendant appealed - The Ontario Court of Appeal dismissed the appeal, holding that the trial judge awarded costs under s. 131(1) of the Courts of Justice Act and rule 57.01 all in the proper exercise of his discretion - The defendant failed to prove that the trial judge erred in his exercise of that discretion - See paragraphs 2, and 70 to 76.

Torts - Topic 54

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

Torts - Topic 60

Negligence - Causation - Foreseeability - [See second Medicine - Topic 4241.2 ].

Cases Noticed:

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130, refd to. [para. 32].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 35].

Mustapha v. Culligan of Canada Ltd. (2006), 218 O.A.C. 271; 84 O.R.(3d) 457 (C.A.), refd to. [para. 37, footnote 1].

Duwyn et al. v. Kaprielian (1978), 7 C.C.L.T. 121 (Ont. C.A.), refd to. [para. 37].

Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1999), 127 O.A.C. 286; 48 O.R.(3d) 228 (C.A.), refd to. [para. 37].

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. 41].

Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engineering Co.; Ship Wagon Mound (No. 1), Re, [1961] A.C. 388 (P.C.), refd to. [para. 51].

Hughes v. Lord Advocate, [1963] A.C. 388 (P.C.), refd to. [para. 51].

Ontario (Minister of Highways) v. Coté - see Kalogeropoulos and Millette v. Côté et al.

Kalogeropoulos and Millette v. Côté et al., [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 51].

White et al. v. Chief Constable of South Yorkshire et al., [1998] 3 W.L.R. 1509; 234 N.R. 121 (H.L.), refd to. [para. 52].

Heywood v. Wellers, [1976] Q.B. 446 (C.A.), refd to. [para. 57, footnote 3].

Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engineering Co.; Ship Wagon Mound (No. 2), Re, [1966] 2 All E.R. 709 (P.C.), refd to. [para. 60].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [para. 67].

Hague et al. v. Liberty Mutual Insurance Co., [2005] O.T.C. 290 (Sup. Ct.), refd to. [para. 73].

Andersen et al. v. St. Jude Medical Inc. et al. (2006), 208 O.A.C. 10 (Div. Ct.), refd to. [para. 73].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 75].

Authors and Works Noticed:

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), pp. 425, 426 [para. 37].

Counsel:

Earl A. Cherniak, Q.C., and Jasmine Akbaral, for the appellant;

Brian J.E. Brock, Q.C., and Joy Stothers, for the respondents.

This appeal was heard on November 24, 2009, by MacPherson, Simmons and LaForme, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by LaForme, J.A., on April 7, 2010.