Kruk v. Ho et al., 2008 BCCA 201

• Judge: Finch, C.J.B.C., Levine and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 22, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 201;(2008), 255 B.C.A.C. 223 (CA)

Kruk v. Ho (2008), 255 B.C.A.C. 223 (CA);

    430 W.A.C. 223

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. MY.035

Anthony Richard Kruk (appellant/plaintiff) v. Dr. Brian Y.B. Ho, Dr. W. Hardie and Dr. Ian Turnbull (respondents/defendants) and Dr. Melvin Serink, Dr. P. Chipperfield, Dr. M. Boyd, Dr. M. Jane Sproule, Dr. J.W. Mackie, Dr. T. Elliott, Dr. W.M. Thompson, Dr. Michael I. Leckie, Vancouver General Hospital, St. Paul's Hospital, Dr. John Doe #1, Dr. John Doe #2 (defendants)

(CA035144; 2008 BCCA 201)

Indexed As: Kruk v. Ho et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Levine and Chiasson, JJ.A.

May 9, 2008.

Summary:

The plaintiff sued inter alia, three doctors (Ho, Hardie and Turnbull), alleging that in 1994 they negligently failed to diagnose his condition, which led to the progression of his disease. Following a summary trial under rule 18A of the Rules of Court, the plaintiff's action was dismissed on the basis that it was commenced after the expiry of the six year "ultimate" limitation period for medical negligence provided for in s. 8(1)(b) of the Limitation Act. The plaintiff appealed, arguing that the trial judge erred in finding the limitation period commenced at the time the doctors failed to diagnose him in 1994.

The British Columbia Court of Appeal allowed the appeal and set aside the order dismissing the action. The commencement of the limitation period could not be determined on the conflicting evidence and might only be determinable in the context of a full trial.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - The plaintiff sued inter alia, three doctors alleging that in 1994 they negligently failed to diagnose his condition, which led to the progression of his disease - Following a summary trial under rule 18A of the Rules of Court, the plaintiff's action was dismissed on the basis that it was commenced after the expiry of the six year "ultimate" limitation period for medical negligence (Limitation Act, s. 8(1)(b)) - The British Columbia Court of Appeal allowed the plaintiff's appeal and set aside the order dismissing the action - The trial judge misconceived the principle to be applied in determining when the limitation period for medical negligence began and therefore erred in concluding that the ultimate limitation period began in 1994 - The trial judge should have applied the principle that the ultimate limitation period did not begin until both the negligent conduct and some consequent damage had occurred - The commencement of the limitation period (when damage from the failure to diagnose began) could not be determined on the conflicting evidence and might only be determinable in the context of a full trial.

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Limitation of Actions - Topic 1904 ].

Cases Noticed:

Hughes v. Cooper Estate, [1997] B.C.T.C. Uned. 787; 36 C.C.L.T.(2d) 42 (S.C.), refd to. [para. 14].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 12].

Wittman v. Emmott et al. (1991), 53 B.C.L.R.(2d) 228 (C.A.), refd to. [para. 15].

Karsanjii Estate v. Roque (1990), 43 B.C.L.R.(2d) 234 (C.A.), refd to. [para. 33].

410727 B.C. Ltd. et al. v. Dayhu Investments Ltd. et al. (2004), 201 B.C.A.C. 122; 328 W.A.C. 122; 30 B.C.L.R.(4th) 157; 2004 BCCA 379, refd to. [para. 33].

Counsel:

J. Hyde, for the appellant;

J.M. Lepp, Q.C., and B. Stock, for the respondents.

This appeal was heard on January 22, 2008 before Finch, C.J.B.C., Levine and Chiasson, JJ.A., of the British Columbia Court of Appeal. Levine, J.A., released the following reasons for judgment for the court on May 9, 2008.