Gallant v. Brake-Patten, (2012) 321 Nfld. & P.E.I.R. 77 (NLCA)

• Judge: Green, C.J.N.L, White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: April 09, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 321 Nfld. & P.E.I.R. 77 (NLCA);2012 NLCA 23

Gallant v. Brake-Patten (2012), 321 Nfld. & P.E.I.R. 77 (NLCA);

    996 A.P.R. 77

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. AP.017

Debbie Brake-Patten (appellant) v. Abraham Gallant (respondent)

(10/11; 2012 NLCA 23)

Indexed As: Gallant v. Brake-Patten

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L, White and Hoegg, JJ.A.

April 9, 2012.

Summary:

The plaintiff brought a negligence action for damages against the defendant chiropractor, claiming that his permanent hearing loss and impaired balance function on the right side of his body resulted from a cervical manipulation. The plaintiff alleged that he would not have agreed to the treatment had he been properly advised of the risks. The defendant challenged the causal connection between the treatment and the plaintiff's symptoms and, in any event, submitted that the plaintiff consented to the treatment after being fully informed of the risks.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2010), 292 Nfld. & P.E.I.R. 279; 902 A.P.R. 279, found the defendant liable in negligence. The plaintiff established a causal connection between the cervical manipulation and his injury. The defendant breached her duty to disclose the nature of the procedure and its risks and consequences. The court was satisfied that had the plaintiff been properly advised of the risks, he would not have consented to the treatment. The defendant appealed on the grounds that the judge (1) erred in finding causation; (2) erred in finding that the plaintiff would not have undergone the manipulation had he been properly advised of the risks; (3) erred in admitting biased evidence on the causation issue; and (4) failed to provide reasons for that part of his judgment.

The Newfoundland and Labrador Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The defendant appealed the trial judge's finding of causation in a medical negligence case on the ground that the judge failed to provide sufficient reasons to explain his causation decision - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The court stated that "the trial judge provided a supportive contextual analysis for his acceptance of the expert opinion evidence from [the plaintiff's experts] and his rejection of the ... theory of the defence. ... The trial judge's reasoning was adequate for appellate review, especially given the complete evidentiary record. ... Applying the 'functional need to know' test to the judgment as a whole, the basis for the trial judge's decision is 'capable of being made out'. There is a 'logical connection' between the decision and the evidence and live issues argued at trial. ... To the extent that there might be a lack of clarity identified in the trial judge's decision, it does not overcome the logical connection between the evidence and the result, and the intelligibility of the decision. ... Overall, the trial judge's decision reveals how he reached his conclusion that causation was established." - See paragraphs 117 to 127.

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - At issue was the admissibility of the evidence of the plaintiff's expert witness (neurologist), whose opinion was that the plaintiff's injury (loss of hearing and impaired balance functioning) was likely caused by the defendant chiropractor's cervical manipulation - The trial judge, noting that the witness was qualified and his evidence was clearly relevant, stated that "the only issue is whether there is a reason for exclusion of his testimony on the grounds that his independence and objectivity has been contaminated by the way in which he was retained and by his critical written commentary with regard to the chiropractic profession" - The judge admitted the evidence, finding that the witness "was sufficiently neutral and objective in explaining and defending his opinion that the admissibility of his evidence is justified" - The defendant appealed on the ground that the judge erred in admitting and relying on biased evidence (i.e., expert evidence unreliable) - The Newfoundland and Labrador Court of Appeal held that "if expert evidence meets the Mohan criteria for admissibility, it is admissible. Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence. As such, the issue is one of weight and not admissibility" - The evidence met the Mohan admissibility criteria - The defendant did not identify any aspects of the neurological evidence tainted by the expert's bias - The expert's opposition to chiropractic neck manipulation did not render his neurological evidence unreliable - The trial judge did not err in admitting the evidence - See paragraphs 49 to 105.

Medicine - Topic 3048

Relation with patient - Consent to treatment - Negligence or fault - Duty of the treating doctor to inform patient - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Newfoundland and Labrador Court of Appeal stated that "causation in law is an expression of the relationship that must be found to exist between the tortious act of the defendant and the injury to the plaintiff in order to justify the defendant compensating the plaintiff. It is established when a plaintiff proves, on a balance of probabilities, that his or her injury was caused or contributed to by the defendant. ... In most cases, a plaintiff proves causation by establishing that 'but for' the tortious conduct of the defendant, the plaintiff's injury would not have occurred. ... An exception arises when a defendant breaches a duty of care owed to a plaintiff and thereby exposes that plaintiff to an unreasonable risk of injury which the plaintiff has actually sustained, and it is impossible for the plaintiff to prove causation on the 'but for' test due to factors outside of his or her control but within the control of the defendant. In these exceptional circumstances, the law permits a plaintiff to use the 'material contribution' test to prove causation, for the reason that it would offend basic notions of fairness and justice to deny liability. ... Determination of causation is 'essentially a practical question of fact which can best be answered by ordinary common sense'. ... The plaintiff always has the burden of proving the necessary causal connection between his or her injury and the defendant's conduct. However, the law does not require that causation be established with certainty. Causation is established if a plaintiff proves, on the evidence, that it is more likely than not that the defendant caused the plaintiff's injury." - See paragraphs 12 to 14.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff first saw the defendant chiropractor in 1994 - The chiropractor performed a screening test - The plaintiff passed and was advised that he was a good candidate for cervical manipulation and that there was only a slight risk of stroke - Notwithstanding that the test was later rejected as unreliable, the chiropractor never reconsidered the plaintiff's suitability for manipulation and did not advise him of the risks - After the initial assessment, on future visits, no further physical examinations were performed and no physical history was taken - After a manipulation in 2001, the plaintiff immediately (2-3 hours) suffered dizziness, nausea, tinnitus and impaired balance - He developed permanent hearing loss and impaired balance function on his right side - The plaintiff brought a negligence action for damages against the chiropractor, alleging that he would not have consented to the treatment had he been properly advised of the material risks - The trial judge found the chiropractor negligent for failing to disclose the material risks and, applying the modified objective test, was satisfied that had the plaintiff been properly advised of the risks he would not have consented to the treatment - The judge was satisfied on a balance of probabilities that the plaintiff's injuries were caused by the cervical manipulation, not by a viral infection as suggested by the chiropractor - The chiropractor appealed, arguing that the judge erred in finding causation and in finding that the plaintiff would not have consented to treatment had he been properly advised of the risks - The Newfoundland and Labrador Court of Appeal dismissed the appeal - Although the judge made two factual errors respecting causation, they were not palpable and overriding (i.e., errors did not materially affect the judge's fact findings) - There was ample evidence to support the finding of causation and the finding the plaintiff would not have undertaken treatment had he been properly advised of the risks - See paragraphs 16 to 48.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See second Medicine - Topic 4241.2 ].

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - [See second Medicine - Topic 4241.2 ].

Cases Noticed:

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. 12].

Courtney v. Cleary (2010), 299 Nfld. & P.E.I.R. 85; 926 A.P.R. 85; 2010 NLCA 46, refd to. [para. 12].

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. 12].

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; 2007 SCC 7, refd to. [para. 12].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, refd to. [para. 14].

Ross Estate v. Hiscock (2007), 262 Nfld. & P.E.I.R. 343; 794 A.P.R. 343; 2007 NLCA 2, refd to. [para. 35].

Sentilles v. Inter-Caribbean Shipping Corp. (1959), 361 U.S. 107, refd to. [para. 38].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 42].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 42].

Olsen et al. v. Campbell Jones, [2009] A.R. Uned. 509; 11 Alta. L.R.(5th) 203; 2009 ABQB 371, dist. [para. 44].

Dickson et al. v. Pinder et al. (2010), 489 A.R. 54; 2010 ABQB 269, dist. [para. 44].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 52].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 52].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 57].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 58].

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321, refd to. [para. 58].

Fellowes, McNeil v. Kansa General International Insurance Co. et al. (1998), 79 O.T.C. 241; 40 O.R.(3d) 456 (Gen. Div.), refd to. [para. 59].

R. v. Melaragni (1992), 73 C.C.C.(3d) 348 (Ont. Gen. Div.), refd to. [para. 64].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 246 C.C.C.(3d) 301; 2009 ONCA 624, refd to. [para. 65].

McNamara Construction v. Balfour Beatty Power Networks Ltd. et al. (2007), 272 Nfld. & P.E.I.R. 53; 830 A.P.R. 53; 2000 CarswellNfld 402 (N.L.T.D.), refd to. [para. 69].

Day v. Karagianis et al., [2005] Nfld. & P.E.I.R. Uned. 13; 2005 NLTD 21, refd to. [para. 71].

Corner Brook Pulp & Paper Ltd. v. Geocon, 2000 CarswellNfld. 412 (T.D.), refd to. [para. 73].

Loblaws Inc. v. United Dominion Industries Ltd. (2007), 265 Nfld. & P.E.I.R. 204; 805 A.P.R. 204; 3008 NLTD 45, refd to. [para. 74].

Perry v. St. John's Transportation Commission et al., [2010] Nfld. & P.E.I.R. Uned. 30; 2010 NLTD(G) 154, refd to. [para. 75].

Performance Factory Inc. v. Atlantic Insurance Co. (2010), 295 Nfld. & P.E.I.R. 193; 911 A.P.R. 193; 2010 NLTD 40, refd to. [para. 76].

National Justice Compania Naviera SA v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68 (Q.B.), affd. [1995] 1 Lloyd's L.R. 455 (C.A.), refd to. [para. 77].

Kern v. Forest et al., [2010] B.C.T.C. Uned. 938; 2010 BCSC 938, refd to. [para. 79].

Eastern Power Ltd. v. Ontario Electricity Financial Corp., [2008] O.T.C. Uned. J42 (Sup. Ct.), refd to. [para. 80].

Alfano v. Piersanti, [1009] O.J. No. 1224 (Sup. Ct.), refd to. [para. 80].

Bank of Montreal v. Citak et al., [2001] O.T.C. 192; 104 A.C.W.S.(3d) 110 (Sup. Ct.), refd to. [para. 80].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 109].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 110].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 110].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 110].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 110].

R. v. H.S.B., [2008] 3 S.C.R. 32; 380 N.R. 130; 260 B.C.A.C. 122; 439 W.A.C. 122; 2008 SCC 52, refd to. [para. 110].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 110].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260, refd to. [para. 112].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 112].

Gibson v. Insurance Corp. of British Columbia (2008), 255 B.C.A.C. 98; 430 W.A.C. 98; 80 B.C.L.R.(4th) 232; 2008 BCCA 217, refd to. [para. 115].

Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 295 D.L.R.(4th) 609; 2008 ABCA 273, refd to. [para. 115].

Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd. et al., [2009] [I.L.R. 1-4839; 249 O.A.C. 234; 2009 ONCA 388, refd to. [para. 116].

Authors and Works Noticed:

MacIsaac, Q.C., The Role of the Expert in the Courtroom: Objective Expert or Team Member? (2001), 9 C.L.R.(3d) 84, p. 88 [para. 84].

Woods, Thomas S., Impartial Expert or "Hired Gun"? Recent Developments at Home and Abroad (2002), 60 Advocate (Van.) 205, p. 205 [para. 85].

Counsel:

David Hurley, Q.C., and Andrew A. Fitzgerald, for the appellant;

Valerie H. Hynes and John Drover, for the respondent.

This appeal was heard on April 4 and 11, 2012, before Green, C.J.N.L., White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal.