M.S. et al. v. Baker, 2001 ABQB 1032

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 06, 2001
• Citations: 2001 ABQB 1032;(2001), 309 A.R. 1 (QB)

M.S. v. Baker (2001), 309 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. DE.103

M.S. and S.S. (plaintiffs) v. Clarice A. Baker (defendant)

(Action No. 9703 11933; 2001 ABQB 1032)

Indexed As: M.S. et al. v. Baker

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moreau, J.

December 6, 2001.

Summary:

A woman gave birth to a child 15 months after the defendant obstetrician and gynaecologist performed a tubal clipping sterilization procedure (TCS) on her. The woman and her husband sued the defendant, claiming that she performed the TCS negligently and that they suffered losses and damages as a result, including loss of income. They also claimed the costs of raising the child until adulthood.

The Alberta Court of Queen's Bench dismissed the action, but went on to assess the plaintiffs' damages in the event that it was wrong with respect to the liability issue.

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - A woman gave birth to a child after the defendant performed a tubal clipping sterilization procedure on her - The woman and her husband sued the defendant for damages alleging negligence - The Alberta Court of Queen's Bench dismissed the action - The court stated that if it was wrong with respect to liability, then it would have found that the female plaintiff had sustained income losses that were causally related to the birth of the child - The female plaintiff had been required to withdraw from the labour force as a result of pregnancy complications and to remain off work after the child's birth in order to care for the child who faced health difficulties in the first two years of her life - The female plaintiff's decision to remain home until the child was well recovered was reasonable - The court calculated the female plaintiff's past loss of income accordingly - See paragraphs 100 to 135.

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - A woman gave birth to a child after the defendant performed a tubal clipping sterilization procedure on her - The woman and her husband sued the defendant for damages - The Alberta Court of Queen's Bench dismissed the action - However, if the court had found the defendant liable, it would have found that the husband had suffered some loss of income which was causally related to the pregnancy and birth - The defendant had argued that the prevailing cause of the husband's inability to work was his treatment for childhood sexual abuse and a related court case - However, the court found that the emotional impact of the unexpected pregnancy materially contributed to the husband's floundering in the work force for a period of time, forcing him to take a stress leave in the months before the child's birth - His adjustment problems also continued after the child's release from hospital (the child had health difficulties) and resulted in his counsellor's recommendation that he not pursue employment until after the child's heart surgery (almost two years after her birth) - The court found that a claim for lost income was appropriate for that period, but it had to be based on the husband working half-time hours because of his treatment for sexual abuse - See paragraphs 136 to 148.

Damages - Topic 1765

Deductions for payments or assistance by third parties - By statute or government - Social welfare payments - [See second Damages - Topic 2543 ].

Damages - Topic 2543

Torts affecting the person - Particular damage claims - Wrongful pregnancy, birth or life - [See both Damages - Topic 1550.1 ].

Damages - Topic 2543

Torts affecting the person - Particular damage claims - Wrongful pregnancy, birth or life - A woman gave birth to a child after the defendant performed a tubal clipping sterilization procedure on her - The woman and her husband sued the defendant for damages - The Alberta Court of Queen's Bench dismissed the action - However, the court stated that if it had found the defendant liable then the plaintiffs would have been entitled to damages for their past and future costs of raising the child until the age of 18 - The court stated that the reasons for the sterilization procedure could inform the determination of whether the subsequent unplanned birth constituted an injury requiring redress - In this case, the plaintiffs were in constrained financial circumstances and the financial burden of raising another child materially contributed to their decision to proceed with the sterilization surgery - Accordingly, there was an injury to redress - The court calculated the past and future costs of raising the child based on the joint income of the plaintiffs - The increased social assistance received by the plaintiffs due to the child was to be deducted from the pre-trial costs of raising her - See paragraphs 149 to 172.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - A woman gave birth to a child 15 months after the defendant obstetrician and gynaecologist performed a tubal clipping sterilization procedure (TCS) on her - The woman and her husband sued the defendant for damages - The plaintiffs submitted that the failure of the TCS and the fact that a free-floating clip was found in the plaintiff's abdomen, coupled with a less than one in 500 chance of becoming pregnant after a non-negligently performed TCS, provided a sufficient factual foundation to allow the court to draw an inference of negligence - The Alberta Court of Queen's Bench dismissed the plaintiffs' claim - An inference of negligence could not be drawn in light of the evidentiary findings which the court made and the two alternative theories advanced by the defendant, which were not speculative - See paragraph 97.

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth - [See Medicine - Topic 4245 ].

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - [See Medicine - Topic 4245 ].

Cases Noticed:

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1999), 228 A.R. 274; 188 W.A.C. 274 (C.A.), leave to appeal denied (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 64].

Rhine v. Millan et al. (2000), 263 A.R. 201 (Q.B.), refd to. [para. 65].

Cranwill v. James et al. (1994), 164 A.R. 241 (Q.B.), affd. (1997), 193 A.R. 204; 135 W.A.C. 204 (C.A.), leave to appeal denied (1997), 223 N.R. 227; 212 A.R. 235; 168 W.A.C. 235 (S.C.C.), refd to. [para. 65].

Tiesmaki v. Wilson, [1974] 4 W.W.R. 19 (Alta. T.D.), affd. [1975] 6 W.W.R. 639 (Alta. C.A.), refd to. [para. 65].

Neuzen v. Korn, [1995] 10 W.W.R. 1; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 66].

ter Neuzen v. Korn - see Neuzen v. Korn.

Kehler v. Myles et al. (1986), 74 A.R. 259; 48 Alta. L.R.(2d) 258 (Q.B.), affd. (1988), 92 A.R. 345; 64 Alta. L.R.(2d) 97 (C.A.), leave to appeal denied (1989), 101 N.R. 231; 95 A.R. 236 (S.C.C.), refd to. [para. 66].

Wilson v. Swanson (1956), 5 D.L.R.(2d) 113 (S.C.C.), 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, refd to. [para. 68].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 70].

Clare v. Ostolosky et al. (2001), 300 A.R. 341 (Q.B.), refd to. [para. 72].

Kealey v. Berezowski (1996), 9 O.T.C. 1; 136 D.L.R.(4th) 708 (Gen. Div.), refd to. [para. 72].

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; [1997] 1 W.W.R. 97, refd to. [para. 128].

Cryderman v. Ringrose, [1977] 3 W.W.R. 109; 6 A.R. 21 (Dist. Ct.), affd. [1978] 3 W.W.R. 481; 89 D.L.R.(3d) 32 (Alta. C.A.), refd to. [para. 150].

Suite v. Cooke, [1995] R.J.Q. 2765 (Que. C.A.), refd to. [para. 156].

Cataford v. Moreau (1978), 114 D.L.R.(3d) 585 (Que. S.C.), refd to. [para. 157].

Joshi v. Wooley (1995), 4 B.C.L.R.(3d) 208 (S.C.), refd to. [para. 159].

Ramsay (Tichkowsky) v. Bain (1995), 170 A.R. 298 (Q.B.), refd to. [para. 169].

Boarelli v. Flannigan (1973), 36 D.L.R.(3d) 4 (Ont. C.A.), refd to. [para. 169].

Lincoln v. Hayman, [1982] 1 W.L.R. 488 (C.A.), refd to. [para. 169].

Cockerill et al. v. Willms Transport (1964) Ltd. et al. (2001), 284 A.R. 256; 9 M.V.R.(4th) 167 (Q.B.), refd to. [para. 170].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 170].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Authors and Works Noticed:

Cooper-Stephenson, K., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 440, 568 [para. 168].

Penfield, A. Jefferson, The Filshie Clip for Female Sterilization; A Review of World Experience (2000), 182 Amer. J. of Obstetrics and Gynaecology, p. 6 [para. 51].

Counsel:

J.F. McGinnis and G.T. Lund, for the plaintiffs;

T.L. Howell and C.L. Bailey, for the defendant.

This action was heard before Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 6, 2001.