Jodrey v. Dhalla, (1985) 66 N.S.R.(2d) 245 (CA)

• Judge: Jones, Morrison and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 28, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 66 N.S.R.(2d) 245 (CA)

Jodrey v. Dhalla (1985), 66 N.S.R.(2d) 245 (CA);

    152 A.P.R. 245

MLB headnote and full text

Jodrey v. Dhalla

(S.C.A. 01376)

Indexed As: Jodrey v. Dhalla

Nova Scotia Supreme Court

Appeal Division

Jones, Morrison and Pace, JJ.A.

January 28, 1985.

Summary:

A woman brought a negligence action for damages against her doctor for the negligent performance of breast reduction surgery. Liability was admitted. The jury awarded the woman $200,000 general damages for non-pecuniary loss and $50,000 punitive damages. The doctor appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal and reduced the general damage award to $40,000. The court stated that this was not an appropriate case for an award of punitive or exemplary damages.

Damage Awards - Topic 56

Chest - Breast - A doctor negligently performed breast reduction surgery on a 25 year old housewife - Negligence necessitated three additional operations - Considerable pain and suffering - Scarring and disfigurement - Loss of nipples, areolas and sensitivity in the breasts - Diminution in sexual capacity and loss of ability to nurse - A jury awarded $200,000 general damages for non-pecuniary loss - The Nova Scotia Court of Appeal reduced the award to $40,000 - See paragraphs 10 to 22.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - A doctor negligently performed breast reduction surgery - The woman became unable to nurse, so 14 months after the operation she had a tubal ligation - The Nova Scotia Court of Appeal held that the tubal ligation was not a foreseeable consequence of the doctor's negligence and therefore was not compensable by way of damages - See paragraph 18.

Damages - Topic 1310

Exemplary or punitive damages - Negligence - A doctor negligently performed breast reduction surgery on a woman - The jury awarded the woman $50,000 exemplary damages - The Nova Scotia Court of Appeal held that the issue of punitive or exemplary damages should not have been left with the jury, where the doctor's conduct showed no contempt for the woman's rights and he did not act maliciously - See paragraphs 23 to 25.

Medicine - Topic 4246

Liability of practitioners - Negligence - Cosmetic surgery - A doctor performed breast reduction surgery on a woman - The doctor used an "outdated high risk unpredictable procedure", did not fully inform the woman of the risks of the surgery and did not consult a specialist in plastic surgery - The doctor admitted liability for negligently performing the operation - The jury awarded $200,000 general damages for non-pecuniary loss - The Nova Scotia Court of Appeal reduced the award to $40,000 - See paragraphs 4 to 6.

Practice - Topic 8806

Appeals - Duty of appellate court regarding damage awards by jury - The Nova Scotia Court of Appeal stated that an appellate court was not justified in interfering with a jury's damage award unless a wrong principle of law was applied or the amount awarded was so inordinately high or low that it must be an erroneous estimate of the damage - See paragraph 10.

Cases Noticed:

Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601, appld. [para. 10].

Andrews v. Grand & Toy (Alta.) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452, folld. [para. 12].

Arnold v. Teno, [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, refd to. [para. 14].

Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, refd to. [para. 14].

Humphries v. Pictou County Power Board, [1931] 2 D.L.R. 574 (N.S.C.A.), refd to. [para. 18].

MacDonald v. Ross (1983), 55 N.S.R.(2d) 441; 114 A.P.R. 441, refd to. [para. 20].

White v. Turner (1980), 15 C.C.L.T. 81, refd to. [para. 20].

Michalak v. Dalhousie University (1984), 61 N.S.R.(2d) 374; 133 A.P.R. 374 (N.S.C.A.), refd to. [para. 21].

Atlantic Concrete Ltd. v. MacDonald et al. (1975), 12 N.S.R.(2d) 179; 6 A.P.R. 179, refd to. [para. 24].

Authors and Works Noticed:

Goldsmith, Damages for Personal Injury and Death in Canada (1982-1983), p. 33 [para. 20].

Waddams, Law of Negligence, para. 998 [para. 23].

Counsel:

R.J. Downie, Q.C., and Peter W. Gurnham, for the appellant;

David S. Ehrlich and Rose Ann MacGillivray, for the respondent.

This appeal was heard on January 11, 1985, before Jones, Morrison and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 28, 1985, Jones, J.A., delivered the following judgment for the Court of Appeal.