Arndt v Smith

JurisdictionFederal Jurisdiction (Canada),Scotland
JudgeCory J.,Sopinka,Iacobucci JJ.,McLachlin J.
Judgment Date26 June 1997
CourtCourt of Session
Docket NumberFile No.: 24943.
Date26 June 1997

SUPREME COURT OF CANADA

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

File No.: 24943.

Margaret Smith
Appellant
and
Carole Arndt and Dennis Jackson
Respondent
Cases Cited

By Cory J.

Applied: Reibl v. Hughes, [1980] 2 S.C.R. 880; referred to: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634.

By McLachlin J.

Considered: Reibl v. Hughes, [1980] 2 S.C.R. 880; referred to: Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634; Laferrière v. Lawson, [1991] 1 S.C.R. 541; Chatterton v. Gerson, [1981] 1 Q.B. 432; Hills v. Potter, [1983] 3 All E.R. 716; Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All E.R. 643; Ellis v. Wallsend District Hospital (1989), 17 N.S.W.L.R. 553; Canterbury v. Spence, 464 F.2d 772 (1972); Young v. Northern Territory of Australia (1992), 107 F.L.R. 264; Bernard v. Char, 903 P.2d 667 (1995); Scott v. Bradford, 606 P.2d 554 (1979); Smith v. Reisig, 686 P.2d 285 (1984); Arena v. Gingrich, 733 P.2d 75 (1987); Cobbs v. Grant, 502 P.2d 1 (1972); Martin v. Insurance Corp. of British Columbia (1979), 13 B.C.L.R. 163.

Statutes and Regulations Cited

Limitation Act, R.S.B.C. 1979, c. 236, s. 3(1)(a).

Authors Cited

Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.

Fontigny, Nadine. ‘When Yes Really Means Yes: The Law of Informed Consent in Canada Revisited’ (1996), 4 Health L. Rev. 17.

‘Informed Consent — A Proposed Standard for Medical Disclosure’ (1973), 48 N.Y.U. L. Rev. 548.

Osborne, Philip H. Annotation to Arndt v. Smith (1995), 25 C.C.L.T. (2d) 264.

Osborne, Philip H. ‘Causation and the Emerging Canadian Doctrine of Informed Consent to Medical Treatment’ (1985), 33 C.C.L.T. 131.

Robertson, Gerald. ‘Informed Consent Ten Years Later: The Impact of Reibl v. Hughes’ (1991), 70 Can. Bar Rev. 423.

Negligence — Medical malpractice — Causation — Mother contracting chickenpox while pregnant — Child born with disabilities resulting from mother's chickenpox — Mother suing doctor for costs associated with raising child — Whether loss caused by doctor's failure to advise properly of risk — Appropriate test of causation.

APPEAL from a judgment of the British Columbia Court of Appeal (1995), 6 B.C.L.R. (3d) 201, 126 D.L.R. (4th) 705, [1995] 7 W.W.R. 378, 61 B.C.A.C. 57, 100 W.A.C. 57, 25 C.C.L.T. (2d) 262, reversing a decision of the British Columbia Supreme Court (1994), 93 B.C.L.R. (2d) 220, [1994] 8 W.W.R. 568, 21 C.C.L.T. (2d) 66, dismissing the respondents' claim against the appellant physician. Appeal allowed, Sopinka and Iacobucci JJ. dissenting.

A sued her physician S for costs associated with rearing her daughter, who was congenitally injured by chickenpox A had contracted during her pregnancy. She contended that had S properly advised her of the risk of injury to her fetus, she would have terminated the pregnancy and avoided the costs she now incurs. S contended that A would not have terminated the pregnancy even if she had been fully advised, and therefore asserted that the loss claimed was not caused by the failure to advise of risk. The trial judge dismissed A's claim. Evaluating her testimony at trial that she would have had an abortion against the fact that she desired a child, that she was sceptical of ‘mainstream’ medical intervention, that an abortion in the second trimester held increased risks and that an abortion would have required the approval of a committee on health grounds, the trial judge concluded that A would not, on a balance of probabilities, have aborted the pregnancy. Also supportive of the trial judge's conclusion was evidence that the risk of serious injury to the fetus was very small and medical advisers would have recommended against an abortion. The Court of Appeal held that the trial judge had applied the wrong test and directed a new trial.

Held (Sopinka and Iacobucci JJ. dissenting): The appeal should be allowed.

A's claims for economic loss are not barred by s. 3(1)(a) of the British Columbia Limitation Act, which provides a two-year limitation period in actions for ‘damages in respect of injury to person or property, including economic loss arising from the injury’, because they do not relate to personal injury either to A or to her daughter.

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Major JJ.: When determining whether the loss claimed by A was caused by S's failure to advise of the risk the court should adopt the modified objective test set out in Reibl v. Hughes. The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the plaintiff's circumstances would have done if faced with the same situation. The trier of fact must take into consideration any ‘particular concerns’ of the patient and any ‘special considerations affecting the particular patient’ in determining whether the patient would have refused treatment if given all the information about the possible risks. The ‘reasonable person’ who sets the standard for the objective test must be taken to possess the patient's reasonable beliefs, fears, desires and expectations. While evidence of reasonable fears and concerns can thus be taken into account, purely subjective fears which are not related to the material risks should not be considered. The modified objective test strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach. A purely subjective approach fails to take into account the inherent unreliability of the self-serving assertion of a plaintiff, while the purely objective standard might result in undue emphasis being placed on the medical evidence, essentially resulting in a test which defers completely to medical wisdom.

It is appropriate to infer from the evidence in this case that a reasonable person in the plaintiff's position would not have decided to terminate her pregnancy in the face of the very small increased risk to the fetus posed by her exposure to the virus which causes chickenpox. While A did make a very general inquiry concerning the risks associated with maternal chickenpox, there was nothing to indicate to the doctor that she had a particular concern in this regard. Further, factors such as A's desire for children and her suspicion of the mainstream medical profession can be taken into consideration when determining what a reasonable person in her position would have done if informed of the risks. As found by the trial judge, the failure to disclose some of the risks to the fetus associated with maternal chickenpox did not affect A's decision to continue the pregnancy to term. It follows that the failure to disclose did not cause the financial losses for which she is seeking compensation.

Per McLachlin J.: This case raises the hypothetical question of what the plaintiff would have done had the physician discharged her duty to disclose. General tort principles suggest that this question is a purely factual inquiry to be answered by reference to all the evidence. This may include evidence from the plaintiff at trial as to what she would have done, but it also includes relevant evidence of her situation, circumstances and mind-set at the time the decision would have been made. The trial judge must look at all the evidence and determine whether the plaintiff would have taken the suggested course on a balance of probabilities. The approach suggested by the fundamental principles of tort law is subjective, in that it requires consideration of what the plaintiff at bar would have done. However, it incorporates elements of objectivity; the plaintiff's subjective belief at trial that she would have followed a certain course stands to be tested by her circumstances and attitudes at the time the decision would have been made as well as the medical advice she would have received at the time.

The trial judge applied the right test in this case and did not err in dismissing the action on the ground that A had failed to establish that S's failure to advise her of the risk to her fetus from chickenpox caused the loss associated with the rearing of her disabled daughter. While he paid lip service to the reasonable person test, he resolved the issue of causation by asking what the plaintiff herself would have done in all the circumstances. He considered a number of external circumstances, including the fact that an abortion in the second trimester would have been riskier than an earlier abortion and the need to obtain the approval of a committee for any abortion. He went on to consider factors going to A's state of mind, including the fact that she very much wanted to have a child, that she had a natural skepticism of mainstream medicine and had so informed S and that she stated she did not want an ultrasound scan of the developing fetus. The fact that the medical profession would not have recommended an abortion in these circumstances also supports the trial judge's conclusion that A would not have chosen an abortion had she been advised of the very small increased risk to the fetus posed by chickenpox.

Per Sopinka and Iacobucci JJ. (dissenting): As found by McLachlin J., the appropriate test of causation in the present circumstances is not to ask what the ‘reasonable person’ would have done in A's position, but is to ask what A herself would have done had she been fully apprised of the risks to the fetus resulting from her chickenpox. The trial judge did not apply the appropriate test, however, but applied an objective test. He repeatedly referred to the pivotal role played in his causation analysis by the ‘reasonable and...

To continue reading

Request your trial
3 cases
  • Hoyts Pty Ltd v Burns
    • Australia
    • High Court
    • 9 October 2003
    ...553 at 572. 47 In Canada and the United States of America an objective test has been adopted: Reibl v Hughes (1980) 114 DLR (3d) 1 at 16; Arndt v Smith [1997] 2 SCR 539; Canterbury v Spence 464 F 2d 772 at 791 (1972). However, the test in Australia is a subjective one: Rogers v Whitaker (19......
  • Rosenberg v Percival
    • Australia
    • High Court
    • 5 April 2001
    ...— a cautionary note from Canada: Arndt v Smith‘, (1998) 6 Torts Law Journal 135 at 143 (‘McInnes’) citing Cory J in Arndt v Smith [1997] 2 SCR 539 at 553; Girgis, Thomson and Ward, ‘“The Courts Expect the Impossible”: Medico-legal Issues as Perceived by New South Wales General Practitioners......
  • Chappel v Hart
    • Australia
    • High Court
    • Invalid date
3 books & journal articles
  • Harriton v. Stephens, Waller v. James: wrongful life and the logic of non-existence.
    • Australia
    • Melbourne University Law Review Vol. 30 No. 3, December 2006
    • 1 December 2006
    ...[2003] QB 20, which largely followed McFarlane; McKay [1982] QB 1166, where wrongful life actions were disallowed. (7) Arndt v Smith [1997] 2 SCR 539; Krangle v Brisco [2002] 1 SCR 205, which allowed damages for wrongful birth, but not for the ordinary costs of raising the child to maturity......
  • Taking the Consequencies for Failure to Warn of Medical Risks
    • United Kingdom
    • The Modern Law Review No. 63-2, March 2000
    • 1 March 2000
    ...wasnot relevant on the facts.10 At para 93.7.11 A recent decision of the Supreme Court of Canada in point is that of Arndt vSmith [1997] 2 SCR 539.12 See n 10 above. In fact it is apparent that courts which use the ‘objective’ approach are no longerengaging in a purely factual causal inquir......
  • ‘Factual causation’ and ‘scope of liability’: What's the difference?
    • United Kingdom
    • The Modern Law Review No. 77-2, March 2014
    • 1 March 2014
    ...Liability Act 2002 (NSW), s 5D(3) excludes the plaintiff’s evidence as to what she wouldhave done had she been warned; Arndt vSmith [1997] 2 SCR 539 requires the plaintiff to satisfya ‘modified objective test’ – that a reasonable person in her position would have avoided the riskif warned; S......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT