See Beldycki Estate v. Jaipargas, 2012 ONCA 537 a case which nicely distinguishes between cause of harm vs loss and its very important impact on an award of damage. It makes that point that once an act of medical negligence is determined on a balance of probabilities to have caused the harm, the likelihood that the harm may have still been occasioned becomes irrelevant in assessing the amount of the loss. See below:
[76] However, a plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Entitlement to compensation depends, in part at least, on the degree of risk established. Risk in this sense refers to the risk of future loss – not the degree to which causation was established. The measure of compensation will also depend on the possibility, if any, that a plaintiff would have suffered some or all of the projected losses even if the wrong done to him or her had not occurred: Graham, at pp. 634-635.
…
[84] Third, the argument advanced by the appellant is based on flawed reasoning. Once it was established on a balance of probabilities that the appellant’s negligent failure to detect the liver lesion caused the metastasis of the colon cancer, no principle of law entitled the appellant to a discount from the full measure of the Adam Beldycki’s damages to reflect the chance that, even given prompt treatment after deduction, the colon cancer might well still have metastasized: Cabral v. Gupta, [1993] 1 W.W.R. 648 (Man. C.A.), at para. 8; and Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750, at p. 783. The jury found that Adam Beldycki would have been “cured” but for the appellant’s negligence. At law, that he would have been cured was therefore a certainty; that his cancer might still have metastasized was a legal impossibility
http://www.ontariocourts.ca/decisions/2012/2012ONCA0537.htm
Cheers. PS: David, I have a pool on how long it will take for you to respond to this email J
Barbara Legate
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