Krangle v. Brisco (2002), 281 N.R. 88 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2002] N.R. TBEd. JA.021
Dr. Stanley Fred Morrill (appellant) v. Mervyn Dudley Krangle, an Infant by his Mother and Guardian Ad Litem, Phapphim Krangle, the said Phapphim Krangle and Murray John Krangle (respondents)
(27891; 2002 SCC 9)
Indexed As: Krangle v. Brisco et al.
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
January 24, 2002.
Summary:
The parents of a child born with Down Syndrome sued the defendant doctors for damages for “wrongful birth”.
The British Columbia Supreme Court, in a decision reported at [1997] B.C.T.C. Uned. H14, allowed the action and held that the defendants were liable in negligence for failing to inform the parents about the availability of an amniocentesis test during pregnancy. The court assessed damages accordingly. The court found that the child himself had no cause of action. The parents appealed the decision of the trial judge declining to award damages for the cost of care of the child in a group home after age 19.
The British Columbia Court of Appeal, McEachern, C.J.B.C., dissenting in part, in a judgment reported 135 B.C.A.C. 106; 221 W.A.C. 106, allowed the appeal and remitted the matter to the trial judge for determination of the amount of the parents’ damages. One of the doctors appealed.
The Supreme Court of Canada allowed the appeal, affirming the trial judgment. The parents were not entitled to damages for the cost of caring for the child after he reached adulthood. Any possibility that the child would not be funded by the state was provided for in the $80,000 award to the parents for that contingency.
Damages – Topic 201
Entitlement – Requirement of loss – [See
Damages – Topic 1567
].
Damages – Topic 1567
General damages – For personal injuries – Future care and treatment – A doctor was negligent in the “wrongful birth” of a child with Down Syndrome – The child himself had no cause of action – The child would be cared for by his parents until age 19, when he would move to a group home – At present, adult disabled children were supported by the province under the B.C. Benefits (Income Assistance) Act – The likelihood of continued funding at age 19 was found to be 95% – Post-trial amendments to the Family Relations Act imposed a parental obligation to care for adult disabled children unable to withdraw from their parents’ charge – The parents sought damages for this future obligation to support the child after age 19 – The trial judge declined to award such damages, except for $80,000 to reflect the 5% contingency of no funding – The British Columbia Court of Appeal awarded the parents damages for adult care – The Supreme Court of Canada restored the trial judgment – The post-trial amendments did not affect the parents where the child, who would be withdrawing from their charge at age 19, would not be a “child” under the Act – Absent any reasonable expectation of the parents being obligated to support the child after age 19, there was no loss to be compensated for.
Damages – Topic 1765
Deductions for payments or assistance by third parties – By statute or government – Social welfare payments – [See
Damages -Topic 1567
].
Statutes Noticed:
BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27, sect. 15(1)(a), sect. 24.1(1)(b) [para. 18].
Family Relations Act, R.S.B.C. 1996, c. 128, sect. 87(a), sect. 88(1) [para. 18].
Authors and Works Noticed:
British Columbia, Hansard, Debates of the Legislative Assembly, 2nd Sess., 36th Parl., July 21, 1997, pp. 6055, 6056 [para. 37].
Stapleton, Jane, The Normal Expectancies Measure in Tort Damages (1997), 113 L.Q.R. 257, generally [para. 22].
Woodman, Faye L., Financial Obligations of Parents to Adult Disabled Children, Part I (1997), 17 Est. Tr. & P.J. 131, pp. 140 to 142 [para. 34].
Counsel:
Christopher E. Hinkson, Q.C., and Raj Samtani, for the appellant;
John N. Laxton, Q.C., and Robert D. Gibbens, for the respondents.
Solicitors of Record:
Harper Grey Easton, Vancouver, B.C., for the appellant;
Laxton & Co., Vancouver, B.C., for the respondents.
This appeal was heard on October 3, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
On January 24, 2002, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.
