Neuzen v. Korn (1995), 64 B.C.A.C. 241 (SCC);
105 W.A.C. 241
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Kobe ter Neuzen (appellant) v. Dr. Gerald Korn (respondent) and HIV-T Group (Blood Transfused), Canadian Association of Transfused Hepatitis C Survivors, Canadian Hospital Association and Canadian Red Cross Society (interveners)
(23773)
Indexed As: Neuzen v. Korn
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.
October 19, 1995.
Summary:
The plaintiff became infected with the HIV virus during an artificial insemination procedure performed by the defendant doctor. The plaintiff sued the doctor for negligence. Alternatively, she claimed breach of warranty under the Sale of Goods Act and the common law. A jury found the doctor negligent and assessed $460,000 nonpecuniary general damages. The alternative claim was dismissed. The doctor appealed the negligence finding and the amount of the damage award. The plaintiff cross-appealed the dismissal of her alternative claim and the damage award.
The British Columbia Court of Appeal, in a decision reported (1993), 29 B.C.A.C. 1; 48 W.A.C. 1, allowed the doctor’s appeal against the finding of negligence and the damage award. The court dismissed the plaintiff’s cross-appeal against the dismissal of her alternative claim. The court ordered a new trial limited to the issues of negligence respecting the screening procedure and damages. The plaintiff appealed.
The Supreme Court of Canada dismissed the appeal.
Contracts – Topic 1465
Formation of contract – Intention – Intention to create a legal relationship – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure, sued her doctor alleging a breach of an express contractual warranty – She claimed the Information Sheet provided by the doctor promised that the donor would not be homosexual or a drug abuser and that these statements were made to assure her that the doctor had taken precautions to ensure that the semen would be free from contamination – The Supreme Court of Canada rejected the plaintiff’s argument – There was no intention by either party that there would be contractual liability respecting the statement in the information sheet or that the statements would constitute an express warranty – See paragraphs 64 to 66.
Contracts – Topic 2253
Terms – Conditions and warranties – What constitutes a warranty – [See
Contracts – Topic 1465
].
Damages – Topic 1543
General damages – Personal injury – Pain and suffering, loss of amenities and other nonpecuniary damages – The plaintiff was infected with the HIV virus during an artificial insemination procedure – A jury found the plaintiff’s doctor negligent and awarded $460,000 general damages for nonpecuniary loss – The Supreme Court of Canada held that this was not an exceptional case where the rough upper limit on nonpecuniary damages ($100,000) established by the court in Andrews v. Grand & Toy (Alta.) Ltd. as adjusted for inflation ($240,000) should be exceeded – Although it was reasonable in this case for the judge not to charge the jury respecting the rough upper limit on nonpecuniary damages, the damages awarded should have been reassessed by the trial judge in accordance with Andrews – See paragraphs 111 to 118.
Damages – Topic 1543
General damages – Personal injury – Pain and suffering, loss of amenities and other nonpecuniary damages – The Supreme Court of Canada discussed the rough upper limit on nonpecuniary damages ($100,000) established by the court in 1978 in Andrews – A “trial judge should instruct the jury as to an upper limit, if, after considering the submissions of counsel, he or she is of the opinion that the damages by reason of the type of injury sustained might very well be assessed in the range of or exceeding the upper limit. The instructions may include an explanation of the reason for the cap.” – If the trial judge believes that the injuries involved will not likely produce an award approaching the rough upper limit then it is best not to charge on the matter – Regardless of whether the judge charges respecting the upper limit, if an award exceeds the limit, the judge should reduce the award to conform with the “cap” as adjusted for inflation – See paragraphs 111 to 118.
Medicine – Topic 4242
Liability of practitioners – Negligence – Standard of care – The plaintiff sued her obstetrician after she was infected with the HIV virus during an artificial insemination procedure – The Supreme Court of Canada discussed the applicable standard of care, stating that “it is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field …” – See paragraph 33.
Medicine – Topic 4242
Liability of practitioners – Negligence – Standard of care – The plaintiff sued her doctor, an obstetrician and gynaecologist, after she was infected with the HIV virus during an artificial insemination procedure – The Supreme Court of Canada discussed the applicable standard of care and stated that “it is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence … the courts must not, with the benefit of hindsight judge too harshly doctors who act in accordance with prevailing standards of professional knowledge …” – See paragraph 34.
Medicine – Topic 4242
Liability of practitioners – Negligence – Standard of care – [See first, fifth, sixth and seventh
Medicine – Topic 4260
].
Medicine – Topic 4252.2
Liability of practitioners – Negligence – Obstetrical or gynaecological care – [See first and second
Medicine – Topic 4242
and fifth, sixth and seventh
Medicine – Topic 4260
].
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The Supreme Court of Canada stated that “… as a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent. On the other hand, as an exception to the general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice” – See paragraph 51.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The Supreme Court of Canada held that there may be situations where a standard medical practice may be found to be negligent – “The question as to whether the trier of fact can find that a standard practice is itself negligent is a question of law to be determined by the trial judge irrespective of the mode of trial” – The court thereafter discussed the jury’s role and the appropriate jury instructions in such cases – See paragraphs 52 to 54.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – In a medical negligence suit the following question was raised: “If the jury finds that the evidence of standard practice does not establish that there did indeed exist a standard practice, can the jury fix the standard without reliance on expert testimony?” – The Supreme Court of Canada stated that “if the alleged act or acts of negligence are such that the jury could reject expert evidence as to standard practice and set the appropriate standard without reliance on expert evidence, then it can do precisely that where the expert evidence fails to establish a standard practice” – See paragraph 55.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The Supreme Court of Canada, per Sopinka, J., stated that “… although this is not a matter which arises in this case, I do not foreclose the possibility that exceptionally a jury might find negligence in respect of an issue beyond its ordinary understanding based on expert evidence which it accepts which falls short of establishing a standard practice” – See paragraph 55.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure in 1985, sued her obstetrician, alleging negligence because of a failure to be aware of and warn of the risks – The doctor conformed to the standard practice in 1985 – The Supreme Court of Canada affirmed that no jury acting judicially could have found that, given the state of the knowledge, a reasonable practitioner ought to either have discontinued the procedure or warned of the risk – Further, on this aspect of the case, it was not open to the jury to decide that the standard practice was itself negligent – Rather, the jury was confined to determining whether the doctor acted reasonably in accordance with prevailing practices which he did – The plaintiff’s claim therefore failed on this aspect of the case – See paragraphs 33 to 62.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure in January 1985, sued her doctor, alleging negligence because of a failure to be aware of the risks and to take appropriate action – The trial judge charged the jury that even if the doctor conformed to standard medical practice, it was open to the jury to find that the prevailing medical practice respecting the artificial insemination procedure was negligent – The Supreme Court of Canada affirmed that the judge erred in this instruction because, with respect to this aspect of the case, the question of the standard of care was not one which the jury could decide without the aid of expert evidence and it was not open to the jury to decide that the standard practice was itself negligent – Therefore, the jury was confined to determining whether the doctor acted reasonably in accordance with prevailing practices – See paragraphs 33 to 62.
Medicine – Topic 4260
Liability of practitioners – Negligence – Defences – Approved practice – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure in 1985, sued her obstetrician, alleging negligence in the screening and follow-up of donors – The Supreme Court of Canada agreed that the doctor could be found liable if he ought to have foreseen the class of injury (i.e., sexually transmitted diseases) – On this aspect of case, the evidence respecting standard practice was sketchy and it would be open to the jury to find that there was no standard practice, or alternatively that the standard practice was not to screen donors or do follow-up interviews – The jury could determine the appropriate standard without reliance on expert evidence – If the jury decided that no standard practice existed they could fix the appropriate standard, or if there was a standard practice, the jury could determine whether the practice itself was negligent – See paragraphs 33 to 62.
Medicine – Topic 4365
Liability of practitioners – Breach of contract – Warranties – [See
Contracts – Topic 1465
, first
Sale of Goods – Topic 69,
and
Sale of Goods – Topic 4067
].
Sale of Goods – Topic 69
Sale defined – Sale distinguished from contract for services – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure, sued her doctor alleging that the doctor breached a warranty implied by the Sale of Goods Act that the semen would be of merchantable quality and fit for its purpose – The jury ruled that the contract to perform the artificial insemination procedure was primarily a contract for medical services and not a sale of semen and therefore the Sale of Goods Act was not applicable – The Supreme Court of Canada, without deciding whether the issue of the applicability of the Act should have been left to the jury, held that the jury correctly resolved the issue – See paragraphs 67 to 72.
Sale of Goods – Topic 69
Sale defined – Sale distinguished from contract for services – The Supreme Court of Canada stated that “in order for the Sale of Goods Act to apply, a contract must primarily be for the purpose of selling goods. If the sale of a good is merely incidental to what is primarily a contract for services, then the statute will not imply a warranty … in order to come within the Sale of Goods Act, a contract need not be one exclusively for the sale of goods. However, the sale of a good must be the primary purpose of the contract. Whether a contract is primarily one for the sale of goods or primarily one for services depends upon the essential character of the agreement …” – See paragraph 67.
Sale of Goods – Topic 101
Application of legislation – General – [See both
Sale of Goods – Topic 69
].
Sale of Goods – Topic 4067
Conditions and warranties – Warranties – Warranties at common law – The plaintiff, who was infected with the HIV virus during an artificial insemination procedure, sued her doctor alleging that the doctor breached a warranty implied under the common law – The Supreme Court of Canada reviewed the law respecting implied warranties in contracts for goods and services at common law and held that it would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case – The action against the doctor for injury resulting from the artificial insemination procedure should be confined to negligence – The court opined, that even if it was wrong in concluding that a warranty should not be implied in the circumstances of this case, any warranty would simply be to take reasonable care – See paragraphs 75 to 84.
Cases Noticed:
Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [paras. 3, 124].
Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 28].
Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 33].
Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7; 10 C.C.L.T.(2d) 101; 9 C.P.C.(3d) 78, refd to. [para. 33].
Lapointe v. Hôpital Le Gardeur – see Lapointe v. Chevrette.
McCormick v. Marcotte, [1972] S.C.R. 18; 20 D.L.R.(3d) 345, refd to. [para. 33].
Roe v. Minister of Health; Woolley v. Minister of Health, [1954] 2 All E.R. 131 (C.A.), refd to. [para. 34].
Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831; 3 N.R. 326, refd to. [para. 35].
Dorion v. Roberge et autres, [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81, refd to. [para. 42].
Roberge v. Bolduc – see Dorion v. Roberge et autres.
Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241; 83 D.L.R.(4th) 114, refd to. [para. 43].
Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man. C.A.), affd. [1950] 4 D.L.R. 223 (S.C.C.), refd to. [para. 45].
Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and Ontario Provincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 60].
R. v. Côté – see Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and Ontario Provincial Police Force.
Gee v. White Spot Ltd. (1986), 7 B.C.L.R.(2d) 235 (S.C.), refd to. [para. 67].
Myers and Co. v. Brent Cross Service Co., [1934] 1 K.B. 46, refd to. [para. 77].
Young & Marten Ltd. v. McManus Childs Ltd., [1969] 1 A.C. 454 (H.L.), refd to. [para. 79].
Ford (G.) Homes Ltd. v. Draft Masonry (York) Co. (1983), 2 O.A.C. 231; 43 O.R.(2d) 401 (C.A.), refd to. [para. 81].
Perlmutter v. Beth David Hospital (1954), 123 N.E.2d 792 (N.Y.), refd to. [para. 87].
Fisher v. Sibley Memorial Hospital (1979), 403 A.2d 1130 (D.C.C.A.), refd to. [para. 96].
St. Luke’s Hospital v. Schmaltz (1975), 534 P.2d 781 (Colo.), refd to. [para. 98].
Cunningham v. MacNeal Memorial Hospital (1970), 266 N.E.2d 897 (Ill.), refd to. [para. 99].
Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 272, refd to. [paras. 108, 124].
Crosby Estate v. O’Reilly, [1975] 2 S.C.R. 381; 2 N.R. 338, refd to. [para. 111].
Gray v. Alanco Developments Ltd. (1967), 61 D.L.R.(2d) 652 (Ont. C.A.), refd to. [para. 123].
Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607; 3 C.C.L.T. 257, refd to. [para. 124].
Hill v. Church of Scientology of Toronto and Manning (1995), 184 N.R. 1; 84 O.A.C. 1 (S.C.C.), refd to. [para. 125].
Statutes Noticed:
Negligence Act, R.S.B.C. 1979, c. 298, sect. 6 [para. 123].
Sale of Goods Act, R.S.B.C. 1979, c. 370, sect. 17, sect. 18 [para. 18].
Authors and Works Noticed:
British Columbia Law Reform Commission, Report on Compensation for Non-Pecuniary Loss (1984), p. 13 [para. 128].
Charles, W.H.R., Handbook on Assessment of Damages in Personal Injury Cases (2nd Ed. 1990), p. 75 [para. 128].
Fleming, John G., The Law of Torts (7th Ed. 1987), pp. 109 [para. 39]; 110 [para. 40].
Fridman, G.H.L., The Sale of Goods in Canada (2nd. Ed. 1979), p. 25 [para. 67].
Counsel:
Sandra J. Harper and Kathleen Birney, for the appellant;
Christopher E. Hinkson, Q.C., and M. Lynn McBride, for the respondent;
Kenneth Arenson (written submissions only), for the interveners, HIV-T Group (Blood Transfused) and Canadian Association of Transfused Hepatitis C Survivors;
Daniel A Webster, Q.C. (written submissions only), for the intervener, the Canadian Hospital Association;
Peter K. Boeckle and Anil Varma (written submissions only), for the Canadian Red Cross Society.
Solicitors of Record:
McConnan, Bion, O’Connor & Peterson, Victoria, British Columbia, for the appellant;
Harper Grey Easton, Vancouver, British Columbia, for the respondent;
Kenneth Arenson, Toronto, Ontario, for the interveners, HIV-T Group (Blood Transfused) and Canadian Association of Transfused Hepatitis C Survivors;
Bull, Housser & Tupper, Vancouver, British Columbia, for the intervener, the Canadian Hospital Association;
MacMillan Rooke Boeckle, Toronto, Ontario, for the intervener, the Canadian Red Cross Society.
This appeal was heard on February 2, 1995, before La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on October 19, 1995, including the following opinions:
Sopinka, J. (La Forest, Gonthier, Cory, McLachlin and Iacobucci, JJ., concurring) – see paragraphs 1 to 120;
L’Heureux-Dubé, J. – see paragraphs 121 to 131.
