Holsten v. Card et al., (2002) 162 B.C.A.C. 276 (CA)

• Judge: Rowles, Ryan and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 25, 2001
• Jurisdiction: British Columbia
• Citations: (2002), 162 B.C.A.C. 276 (CA);2002 BCCA 44

Holsten v. Card (2002), 162 B.C.A.C. 276 (CA);

    264 W.A.C. 276

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.051

Greta Holsten (plaintiff/appellant) v. Dr. G.A. Card and Dr. Kenneth C.L. Wu (defendants/respondents)

(CA026607; 2002 BCCA 44)

Indexed As: Holsten v. Card et al.

British Columbia Court of Appeal

Rowles, Ryan and Levine, JJ.A.

January 24, 2002.

Summary:

The plaintiff patient sued the defendant dentists for damages resulting from the allegedly negligent extraction of her wisdom tooth. The action against the defendant Card was resolved.

The British Columbia Supreme Court, in a decision reported at [1999] B.C.T.C. Uned. 717, held that although the extraction was the cause of the plaintiff's injuries, she failed to prove that the defendant Wu was negli­gent in performing the extraction. Accord­ingly, the court dismissed the action. See [2001] B.C.T.C. 332, for a decision on the costs at trial. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Evidence - Topic 212

Inferences and weight of evidence - Infer­ences - Inference of negligence - [See Medicine - Topic 7226 ].

Medicine - Topic 7225

Dentists - Negligence - Evidence and proof - After the defendant dentist extracted the plaintiff's wisdom tooth, she developed chronic pain in her jaw and facial area - The plaintiff sued, claiming that the dentist used the wrong procedure because an inadequate x-ray did not show the relation­ship between the tooth and the inferior alveolar nerve, which was dam­aged in the extraction - The parties' experts gave conflict­ing evidence - The trial judge rejected the plaintiff's expert's evi­dence, and accepted the den­tist's expert's evi­dence - The Brit­ish Col­umbia Court of Appeal ordered a new trial, because the trial judge misappre­hended crucial evi­dence from the experts on which he relied for his con­clusions - See para­graphs 16 to 51.

Medicine - Topic 7226

Dentists - Negligence - Res ipsa loquitur - Inference of negligence - After the defen­dant dentist extracted the plaintiff's wisdom tooth, she developed chronic pain in her jaw and facial area - The plaintiff sued, claiming that the dentist used the wrong procedure because an inadequate x-ray did not show the relationship between the tooth and the inferior alveolar nerve, which was damaged in the extraction - The parties' experts gave conflicting evidence -There was a relative absence of evidence of what the dentist actually did in extract­ing the tooth - The British Columbia Court of Appeal affirmed that the trial judge did not err in failing to draw an inference that the dentist was negligent - See paragraphs 18, 52.

Practice - Topic 8813

Appeals - General principles - Duty of appellate court respecting findings based on professional opinion - [See Medicine - Topic 7225 ].

Torts - Topic 167

Negligence - Evidence - Presumption of negligence (res ipsa loquitur) - Inference of negligence - [See Medicine - Topic 7226 ].

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 5].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, not appld. [para. 52].

Counsel:

J.N. Laxton, Q.C., and R. Gibbens, for the appellant;

M.N. Skorah and J. Lamb, for the respon­dents.

This appeal was heard before Rowles, Ryan and Levine, JJ.A., of the British Col­umbia Court of Appeal, at Vancouver, Brit­ish Columbia, on October 25, 2001. The decision of the court was delivered on Jan­uary 24, 2002, by Levine, J.A.