Villeneuve v. St. Joseph's Hospital et al., (1974) 2 N.R. 37 (SCC)

• Judge: Judson, Ritchie, Spence, Pigeon and Laskin, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 02, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 2 N.R. 37 (SCC);1974 CanLII 8 (SCC);[1975] 1 SCR 285;2 NR 37;47 DLR (3d) 391

Villeneuve v. St. Joseph's Hospital (1974), 2 N.R. 37 (SCC)

MLB headnote and full text

Villeneuve v. St. Joseph's Hospital et al.

Indexed As: Villeneuve v. St. Joseph's Hospital et al.

Supreme Court of Canada

Judson, Ritchie, Spence, Pigeon and Laskin, JJ.

April 2, 1974.

Summary:

This case arose out of a claim for damages for personal injuries by a four year old boy against a doctor and a hospital. Prior to an operation and while the boy was upset and struggling a doctor injected pentothal in error into the brachial artery in the boy's arm which resulted in the amputation of the boy's hand. While the doctor performed the injection two nurses held the struggling boy. The trial court held the doctor solely responsible and liable for the boy's injuries and damages - see [1971] 2 O.R. 593; 18 D.L.R.(3d) 537. On appeal to the Ontario Court of Appeal the finding of the trial judge with respect to the negligence of the doctor was affirmed. In addition, the Ontario Court of Appeal held that the nurses who assisted the doctor were negligent and that as a consequence of the negligence of the nurses the defendant hospital was liable - see 25 D.L.R.(3d) 35.

On appeal to the Supreme Court of Canada the appeal was allowed and the judgment of the trial court was restored. The Supreme Court of Canada stated that the risk of movement by the boy during the injection by the doctor rested solely with the doctor and that the nurses who assisted the doctor were not negligent and, accordingly, the defendant hospital was not liable - see paragraphs 3 to 5.

Spence and Laskin, JJ., dissenting, in the Supreme Court of Canada would have held that the nurses were negligent and that the defendant hospital was liable for the negligence of the nurses because each nurse was acting "within the ordinary scope of her employment" - see paragraphs 30 to 40.

Torts - Topic 35

Negligence - Medical doctors - Standard of care - Anaesthetist injected pentothal in error into the brachial artery of a four year old boy resulting in the amputation of the boy's hand - The Supreme Court of Canada stated that the doctor was negligent for proceeding with the injection when the boy was "seriously upset and struggling" - See paragraphs 3 to 5.

Damage Awards - Topic 30

Hand amputation - Four year old boy - The Supreme Court of Canada did not disturb an award for general damages for personal injuries of $61,500.00 - See paragraphs 18 and 19.

Torts - Topic 44

Negligence - Nurses - Standard of care - Anaesthetist injected pentothal in error into the brachial artery of an upset and struggling four year old boy - The Supreme Court of Canada stated that the risk of movement during the injection rested solely with the doctor and that the nurses who assisted the doctor were not at fault - See paragraphs 3 to 5 and 23 to 29.

Hospitals - Topic 2102

Liability of hospitals for the negligence of nurses - A nurse negligently held the arm of a four year old boy while an anaesthetist injected pentothal in error into the brachial artery which resulted in the amputation of the boy's hand - The Supreme Court of Canada stated that the hospital was liable for the negligence of the nurse because she was acting "within the ordinary scope of her employment" - See paragraphs 30 to 40.

Cases Noticed:

Aynsley et al. v. Toronto General Hospital et al., [1969] 2 O.R. 829, folld. [para. 31].

Hillyer v. Governors of St. Bartholomew's Hospital, [1909] 2 K.B. 820, not folld. [para. 31].

Sisters of St. Joseph of the Diocese of London v. Fleming, [1938] S.C.R. 172, folld. [para. 33].

Trustees of the Toronto General Hospital and Dr. R.L. Matthews and Elizabeth Aynsley, [1972] S.C.R. 435, folld. [para. 34].

Vancouver General Hospital v. Fraser, [1952] 2 S.C.R. 36, folld. [para. 35].

Counsel:

J.D. Bell, Q.C. and K.C. Vaughan, for the appellant;

E.W. Sopha, Q.C. and F.A. Donnelly, for the respondent Paul Villeneuve;

E.P. Newcombe, Q.C. and A.M. Butler, for the respondent Dr. Armstrong.

This appeal was heard by the Supreme Court of Canada on October 19 and 22, 1973. The judgment was delivered on April 2, 1974 and the following opinions were filed:

JUDSON, J. - see paragraphs 1 to 6;

SPENCE, J. - see paragraphs 7 to 42.

RITCHIE and PIGEON, JJ., concurred with JUDSON, J.

LASKIN, J., concurred with SPENCE, J.