Levitt v. Carr et al., (1992) 12 B.C.A.C. 27 (CA)

• Judge: Hutcheon, Toy, Cumming, Gibbs and Goldie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 03, 1992
• Jurisdiction: British Columbia
• Citations: (1992), 12 B.C.A.C. 27 (CA);1992 CanLII 1086 (BC CA);[1992] 4 WWR 160;66 BCLR (2d) 58;12 BCAC 27;12 CCLT (2d) 195;8 CPC (3d) 101

Levitt v. Carr (1992), 12 B.C.A.C. 27 (CA);

    23 W.A.C. 27

MLB headnote and full text

Sidney I. Levitt (plaintiff/respondent) v. Donald M. Carr (defendant/appellant) and Guild, Yule, Schmitt, Lane, Sullivan & Finch, a firm, Ronald R. Holmes and Ian J. Stirling (defendants/respondents)

(CA011159)

Indexed As: Levitt v. Carr et al.

British Columbia Court of Appeal

Hutcheon, Toy, Cumming, Gibbs and Goldie, JJ.A.

April 3, 1992.

Summary:

A patient sued a doctor for damages for medical malpractice.

The British Columbia Supreme Court allowed the action. The doctor appealed.

The British Columbia Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 3010

Actions in tort - When time begins to run - Section 6(3) of the Limitation Act post­poned the running of limitation periods where a plaintiff was ignorant of his cause of action - The British Columbia Court of Appeal interpreted this provision and discussed the tests to be used in applica­tion of the provision - See paragraphs 25 to 77.

Limitation of Actions - Topic 3010

Actions in tort - When time begins to run - A patient underwent four months of steroid therapy for a bowel disease from December 1975 to April 1976 - In April he underwent successful surgery to correct the bowel problem - He developed avascular necrosis (death of bone tissue) necessitating a hip replacement in 1977 - In 1979 he developed problems in the other hip, but replacement was delayed for medical reasons until 1987 - On June 27, 1984, the patient sued the gastroenterol-ogist who prescribed the steroid therapy, al­leging that the bone condition was caused from high doses of steroids - The doctor argued that the two year limitation period in the Limitation Act barred the action - The British Columbia Court of Appeal affirmed that the action was not time barred (ss. 6(3) and 6(4)) - See para­graphs 25 to 77.

Medicine - Topic 4244.2

Liability of practitioners - Negligence - Treatment with drugs with side effects (incl. steroids) - A gastroenterologist gave a patient four months of steroid therapy (prednisone) for a bowel disease - A rare, randomly occurring, but known, side effect was avascular necrosis or death of bone tissue - When the extensive steroid ther­apy was unsuccessful, the patient under­went surgery to correct the problem - The patient developed avascular necrosis and required two hip replacements - The trial judge held that the gastroenterologist was negligent in keeping the patient on the extensive steroid therapy for more than six weeks - The doctor appealed, arguing that there was no causal connection between the extended steroid therapy and the bone disease - The British Columbia Court of Appeal dismissed the appeal - See para­graphs 78 to 100.

Medicine - Topic 4244.2

Liability of practitioners - Negligence - Treatment with drugs with side effects (incl. steroids) - [See second Limitation of Actions - Topic 3010 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - [See first Medicine - Topic 4244.2 ].

Words and Phrases

Appropriate advice - The British Colum­bia Court of Appeal interpreted this phrase as it appeared in ss. 6(3) and 6(4) of the Limitation Act, R.S.B.C. 1979, c. 236 - Section 6(3) postponed the running of limitation periods where a plaintiff was ignorant of his or her cause of action - See paragraphs 52 to 72.

Words and Phrases

Facts - The British Columbia Court of Appeal interpreted this word as it appeared in ss. 6(3) and 6(4) of the Limitation Act, R.S.B.C. 1979, c. 236 - Section 6(3) postponed the running of limitation periods where a plain­tiff was ignorant of his or her cause of action - See paragraphs 54 to 59.

Words and Phrases

Reasonable man - The British Columbia Court of Appeal interpreted this phrase as it appeared in s. 6(3) of the Limitation Act, R.S.B.C. 1979, c. 236 - Section 6(3) postponed the running of limitation periods where a plaintiff was ignorant of his or her cause of action - See paragraphs 48 to 53.

Words and Phrases

Within his means of knowledge - The British Columbia Court of Appeal inter­preted this phrase as it appeared in s. 6(3) of the Limitation Act, R.S.B.C. 1979, c. 236 - Section 6(3) postponed the running of limitation periods where a plaintiff was ignorant of his or her cause of action - See paragraphs 34 to 47.

Cases Noticed:

Reynard v. Carr (1983), 50 B.C.L.R. 166 (S.C.), refd to. [paras. 24, 70].

Karsinjii Estate v. Roque (1990), 43 B.C.L.R.(2d) 234 (C.A.), refd to. [paras. 32, 39, 71].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 32].

Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758, refd to. [paras. 35, 36].

Smith v. Central Asbestos Co., [1973] A.C. 518, refd to. [para. 37].

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 50].

McIntyre v. Armitage Shanks Ltd., [1980] S.C.(H.L.) 46 (H.L. Sc.), refd to. [paras. 55, 58].

Reibl v. Hughes, [1980] 2 S.C.R. 192; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 61].

Clarke v. British Columbia Electric Rail­way Co. Ltd., [1949] 2 W.W.R. 832 (B.C.C.A.), refd to. [para. 67].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [paras. 67, 86-98].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [paras. 67, 80, 82, 89, 90].

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 68].

MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382 (C.A.), refd to. [para. 68].

Bonnington Castings Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.), refd to. [paras. 80, 82, 90].

Wilsher v. Essex Area Health Author­ity, [1988] 1 All E.R. 871; [1988] 1 A.C. 1074; [1988] 2 W.L.R. 557; 87 N.R. 140 (H.L.), refd to. [paras. 80, 83-89, 95, 97, 98].

Haag v. Marshall (1989), 39 B.C.L.R.(2d) 205 (C.A.), refd to. [para. 98].

Statutes Noticed:

Limitation Act, R.S.B.C. 1979, c. 236, sect. 6(3), sect. 6(4) [para. 26 et seq.].

Authors and Works Noticed:

British Columbia, Law Reform Commis­sion, Report on Limitations, Part 2 - General (March 24, 1974), generally [para. 25].

Counsel:

Harvey J. Grey, Q.C., and J.M. Lepp, for the appellant;

James A. Macaulay, Q.C., and Michael Frey, for the respondent, Levitt;

J.C. Grauer, for the respondent, Guild, Yule, Schmitt, Lane, Sullivan & Finch.

This appeal was heard in Vancouver, B.C., on December 2, 3 and 4, 1991, before Hutcheon, Toy, Cumming, Gibbs and Gold­ie, JJ.A., of the British Columbia Court of Appeal. The following decision was rendered by the court on April 3, 1992.