| From: | Barbara Legate <blegate@legate.ca> |
| To: | David Cheifetz <dcheifetz@SZPLaw.com> |
| CC: | obligations@uwo.ca |
| Date: | 04/09/2012 20:32:55 UTC |
| Subject: | RE: Beldycki OCA causation of harm vs loss |
David, we read it as a clear statement.
PS. How did you know I meant you?
From: David Cheifetz [mailto:dcheifetz@SZPLaw.com]
Sent: September-04-12 2:24 PM
To: Barbara Legate
Subject: RE: Beldycki OCA causation of harm vs loss
Hi Barb,
Who wins if I only reply to you (g)?
I saw the case. Watts' language was sloppy. That's unusual for him- even more so given the rest of the panel. Even more so given that Sharpe was on the panel.
Watts is right if the argument he claims the defence made - in para. 84 - is the argument the defence made - because once the trial judge made the decision that the injury was probable, you can't discount for causation. That's the mistake the trial judge made in Athey.
But the CA was wrong if the defence argument went to negative contingencies in future damages assessment post trial.
If we take para. 84 at face value, the CA suggested the appellant made the Athey mistake.
I'm surprised to hear it suggested that Kirk Stevens made that mistake.
If Kirk didn't make that mistake, then what? Then his point was that even after the five year cure there's a statistical chance the cancer may come back. I don' know what the figures are. Watt's suggestion that it was "legally impossible - legally irrelevant - for the cancer to metastasize is wrong.
I'm also unsure about the court's medicine, but I don't know what the evidence was about the statistics that that sort of cancer will return even after 5 years. Cured as of a given date for medicine might mean that B was no more at risk than somebody who never had that cancer of the recurrence. Or it might mean that he was at a greater risk. If the risk was more probable than not, then what he lost was a less than probable chance of a better recovery. That's not recoverable - Cottrelle v Gerrard Sharpe's reasons (other panelists Abella and Moldaver).
But who knows, maybe the evidence wasn't there in clear enough detail for the CA for the court to make that determination - what I think is hinted at by para. 85. Because, if it had been, I can't see Sharpe allowing any portion of the claim which was based on the loss of a less than probable chance etc.
Let's put aside the problem with the suggestion that there are circumstances where law can pretend something is a legally possible cause even though we know it is not. After all, no Canadian court would ever permit such a doctrine ... ok, apart from Cook v. Lewis, and Resurfice, and Clements.
Cheers,
David
___________________________
David Cheifetz
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Email: dcheifetz@szplaw.com
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From: David Cheifetz [mailto:david.cheifetz@rogers.com]
Sent: Tuesday, September 04, 2012 1:58 PM
To: David Cheifetz
Subject: Fw: Beldycki OCA causation of harm vs loss
----- Forwarded Message -----
From: Barbara Legate <blegate@legate.ca>
To: "obligations@uwo.ca" <obligations@uwo.ca>; Joni Dobson <jdobson@legate.ca>
Sent: Tuesday, September 4, 2012 12:56:26 PM
Subject: Beldycki OCA causation of harm vs loss
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
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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