Canadian Lawyer

www.lawtimesnews.com 29 'Things happen' defence problematic for plaintiffs Recent appeal ruling could have unintended effects for future cases, personal injury lawyers say A RECENT ONTARI0 Court of Appeal ruling could have unintended consequences for future cases. Paul Harte, principal lawyer at Harte Law, says the decision in Armstrong v. Royal Victo- ria Hospital has "major implications for the medical negligence bar" and may be heading to the Supreme Court of Canada. The case centres around whether Dr. Colin Ward was negligent during a colectomy sur- gery he performed in 2010 where the plaintiff, Susan Armstrong, ultimately lost her kidney following damage to her left ureter, which is a tube that carries urine from the left kid- ney to the bladder. The appeal court decision states "the central negligence theory" pursued against Ward was that he caused the damage by improperly using a cauterizing device. It was agreed before the trial judge that the thermal energy from the device "is capable of damaging tissue within two millimetres." The plaintiff lawyers argued at trial that Ward was negligent in that he either burned the ureter directly during the surgery or brought the tool too close. Ward admitted at the first trial that Arm- strong sustained damages in the amount of $1,300,000, but he refused to admit to neg- ligence. He denied he had breached the stan- dard of care expected of him as a surgeon, but the trial judge found otherwise. However, on appeal, the majority dis- agreed, finding the "trial judge erred in law in identifying and applying the standard of care. Indeed, on the findings of fact he did make, had the trial judge applied the law correctly, he would have found that Dr. Ward is not li- able." The finding of liability was set aside, Arm- strong's action against Ward was dismissed and $20,000 in costs was awarded to Ward. "The majority decision of the court of ap- peal, in my view, is requiring the plaintiff to come up with an explanation for the specific way the doctor was negligent, which creates an imbalance between the defendant and the plaintiff where the defendant has the ad- vantage of knowing what happened during the operation," Harte says, noting one of the challenges for plaintiffs in surgical negligence cases is they have no direct evidence as they're anesthetized, and it is unrealistic to expect a negligent doctor will admit they were negli- gent. Plaintiffs, therefore, have the onus of proof but are not able to actually prove what negligence occurred, he argues. "The defence, if you take the majority opinion to the extreme, can simply advance what I call the 'things happen' defence — in a vacuum simply say, 'I don't know how it happened but one thing I'm sure about [is] it wasn't me,'" Harte says. "That's the inher- ent difficulty. I would say health-care pro- fessionals tend to be given the benefit of the doubt over non-professionals in these kinds of cases. The defendants have an evidentia- ry edge over the plaintiffs in that they know what happened." Jan Marin, senior associate at Gluckstein Personal Injury Lawyers and counsel for Armstrong, says she was disappointed by the decision as they were confident going into the appeal. She also has concerns about the fu- ture implications of the finding that a plain- tiff needs to rule out potential non-negligent causes of injury, which she calls an onerous and unfair task. "It was our position that if there are defenc- es that would explain the injury, the burden to present that evidence would be on the defen- dant," Marin says. "I say 'burden' in quotations because there isn't a legal burden — the plain- tiff has the duty to prove their case, that's the law. I would describe it as more of a tactical burden on the defence to raise the defences, especially with respect to knowledge being solely in the hands of [the] defendant." Triers of fact should be able to expect that the evidence before them is the best and most complete evidence, she adds — it shouldn't be a guessing game that there are potential other reasons that weren't put into evidence. The court of appeal suggesting other unknown pieces of evidence need to be ruled out is an unreasonable test to which to put the plaintiff. "There could be any number of potential other causes, but if nobody raises that evi-

• Cover