COURT OF APPEAL FOR ONTARIO

DATE: 20000309

DOCKET: C30736

CARTHY, CHARRON and ROSENBERG JJ.A.

B E T W E E N :

KIRK ROBINSON, CHARLOTTE ROBINSON,
MATTHEW ROBINSON, a minor by his
Litigation Guardian, Charlotte Robinson,
JON-PATRICK ROBINSON, a minor by his
Litigation Guardian, Charlotte Robinson,
REBECCA-LYNN ROBINSON, a minor by her
Litigation Guardian, Charlotte Robinson

Plaintiffs/
Respondents

• and -

SYDENHAM DISTRICT HOSPITAL
CORPORATION and DR. JOHN HALPENNY

Defendants/
Appellants

Malcolm M. Mercer and Geoff R. Hall,
for the appellant

Dr. John Halpenny

J. F. O'Brien,
for the respondents

Heard: February 14, 2000

On appeal from the decision of Mr. Justice Cusinato dated
September 21, 1998

CHARRON J.A.:

[1] Dr. Halpenny is an orthopaedic surgeon who treated Kirk
Robinson for a hand fracture. Following a trial, Cusinato J.
found that Dr. Halpenny’s treatment fell below the requisite
standard of care and that this breach of duty caused the
permanent injury to Mr. Robinson’s hand. The trial judge awarded
Mr. Robinson total damages of $208,867.90 plus prejudgment
interest and costs. Dr. Halpenny appeals from both the finding of
liability and the quantum of damages.

The Facts

[2] On June 12, 1993, Mr. Robinson, while carrying a box down
his basement stairs, accidentally tripped over his dog. In his
attempt to stop his fall, he extended his left arm and, in doing
so, his left hand struck against the concrete basement wall. When
his hand began to swell and throb, he went to the hospital to
have it examined. He was referred to the orthopaedic surgeon on
duty at the time, Dr. Halpenny.

[3] Dr. Halpenny directed that x-rays be taken. The x-rays
revealed that Mr. Robinson had a slight fracture of the
metacarpal of the third finger of his left hand. Dr. Halpenny
first realigned the fracture and no issue arises with respect to
that part of the treatment. Then, Dr. Halpenny immobilized the
four fingers of Mr. Robinson’s left hand in a plaster cast in a
position “very much like a closed boxing glove”. The manner in
which Dr. Halpenny immobilized the fracture was the main
complaint at trial. A secondary complaint related to Dr.
Halpenny’s follow-up care of Mr. Robinson.

[4] When Mr. Robinson had the cast removed on July 9, 1993, all
four of the fingers on his left hand were stiffened in the
position in which they had been immobilized in the cast. He could
only move his fingers about an inch up or down. This condition
was described as “contractures”. Dr. Halpenny told Mr. Robinson
that this stiffness had resulted from the cast and that his hand
should return to normal in a few weeks. Dr. Halpenny told
Mr. Robinson to squeeze a ball with his hand and told him to see
his family doctor if he had any further problems.

[5] Mr. Robinson’s fingers stiffened further and, about a week
later, they started to close up completely into a fist. Mr.
Robinson saw his family doctor who arranged an appointment with
Dr. Halpenny. By the time Mr. Robinson saw Dr. Halpenny on
August 19, 1993, the tips of his fingers were in a frozen
position about one half inch from his palm. He was also
experiencing a burning sensation and a clammy feeling in that
hand. These symptoms were described at trial as being probably
due to a condition known as reflex sympathetic dystrophy or RSD.
Upon seeing Mr. Robinson, Dr. Halpenny immediately sent him for
physiotherapy. After several painful and unsuccessful therapy
sessions involving the use of hot wax and the use of force to pry
the fingers open, Mr. Robinson returned to his family doctor to
request another type of treatment. In May 1994, the family
physician referred him to Dr. Richards, a plastic surgeon with a
sub-specialty in hand surgery.

[6] After two surgeries in 1994 and 1996, Mr. Robinson’s hand
was opened but remained without function. His overall level of
disability was described by Dr. Richards as follows:

With respect to the left hand he basically has a
total disability with respect to that hand for any
job or occupation. He can’t carry with it, he
can’t functionally use a keyboard. He has problems
with cold sensitivity. He will never be allowed to
work in an outdoor occupation because the hand, as
a result of all the injuries, doesn’t have normal
blood supply. It is exquisitely sensitive to the
cold. So functionally for his age and education
level there is no job that I can conceive of him
being able to do. He would need an indoor right
hand only job.

[7] At the time of the injury, Mr. Robinson was 38 years old. He
had a grade 10 education, was unemployed at the time and had been
unemployed for some time before that.

[8] The trial judge concluded that Dr. Halpenny fell below the
standard of care required of him in the immobilization of Mr.
Robinson’s injured hand and that this breach was causally
connected to the resulting permanent disability. In light of this
conclusion, the trial judge found it unnecessary to determine
whether there was any breach of the standard of care with respect
to the follow-up treatment. The trial judge then assessed total
damages in the amount of $208,867.90 as follows:

(a) general damages _____ $70,000.00
(b) past wage loss _____ 25,000.00
(c) future wage loss _____ 100,000.00
(d) special damages _____ 13,867.90

[9] Dr. Halpenny submits that the trial judge erred in law with
respect to both the applicable standard of care and the test for
causation. He also submits that the trial judge erred in failing
to consider the issue of contributory negligence arising from the
fact that Mr. Robinson did not pursue his treatment in
physiotherapy. Finally, Dr. Halpenny submits that the amount of
general damages is excessive and that the award of damages for
wage loss, both past and future, is not supported by the
evidence.

Standard of Care

[10] Dr. Halpenny’s main argument on the issue of standard of
care is that the trial judge erred in holding him to an unfairly
rigorous standard by disregarding his lack of sub-specialty in
hand surgery. In support of this argument, counsel for the
appellant relies on an excerpt from the trial judge’s reasons
where he purports to answer a question posed by one of the
medical experts during the course of his testimony. The trial
judge first quoted the question from Dr. Wright’s testimony:

One final question that I have for the legal profession
is whether the same community standard can be applied
to all types of physicians that treat hand fractures.
Is this the same for an emergency medicine physician,
a general practitioner, an orthopaedic surgeon in
general practice and a hand surgeon with sub-specialty
training? In my own circumstances I did not receive
very much in terms of hand surgery training as a
resident. It was only when I went away to do my hand
surgery sub-specialty training that I became aware and
educated in these different positions of hand
immobilization that are thought to be most beneficial
to patients such as Mr. Robinson.

[11] The trial judge then commented on this testimony as follows:

What I extract from Dr. Wright's evidence is that he
was not completely aware of the concerns identified
by the medical literature concerning the positioning
or casting of a metacarpal fracture as a medical
resident. This he submits was achieved only when he
received more extensive training.
To directly address Dr. Wright’s question as it
relates to this defendant upon whether he should be
judged by a more modest standard in his treatment
of the plaintiff, this should be answered with a
resounding no. [Emphasis added.]

[12] If the trial judge’s “resounding no” in answer to Dr.
Wright’s question is to be taken as a general proposition of law
that all physicians are to be held to the same standard,
regardless of their particular training, experience or
circumstances, I would agree with counsel for the appellant that
it is incorrect. However, I do not read the trial judge’s reasons
as adopting such a proposition. The above-noted excerpt must be
read in the context of the entire reasons. It is clear from this
context that the trial judge applied the proper standard.

[13] First, I note that, earlier in his reasons, the trial judge
cited the following excerpt from Sylvester v. Crits (1956), 1
D.L.R. (2d) 502 at 508, aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991 as setting out
the standard of care adopted by our courts:

Every medical practitioner must bring to his task
a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. He is bound
to exercise that degree of care and skill which could
reasonably be expected of a normal, prudent
practitioner of the same experience and standing, and
if he holds himself out as a specialist, a higher
degree of skill is required of him than of one who
does not profess to be so qualified by special
training and ability.

[14] No issue is taken with this statement of the law.

[15] Second, it is important to note that the trial judge gave
this impugned answer, not as a general proposition of law but
rather, “as it relates to this defendant … in his treatment of
the plaintiff”. Hence, he was referring to the standard of care
to be expected of Dr. Halpenny as it related to the particular
treatment in question, the casting of a hand fracture. In other
words, the trial judge simply found that this particular doctor
performing this particular treatment should not be assessed
against a lower standard of care. With respect to the
performance of this task, the trial judge’s view that no lesser
standard should be expected of the orthopaedic resident was well
supported by the evidence. In support of his finding, the trial
judge referred to the expert testimony of Dr. Richards on the
education received by an orthopaedic resident. It is clear from
this evidence that a physician in Dr. Halpenny’s position would
be aware of the appropriate positioning of a fractured hand for
the purpose of immobilization. The trial judge also referred to
Dr. Halpenny’s own testimony where he conceded that he would have
received this training. On the basis of this evidence, the trial
judge concluded as follows:

From my analysis of the expert testimony of Dr.
Richards, I have formed the following conclusion
as to the orthopaedic surgeon who practices in a
smaller community hospital. Although he may not
be aware of all the sophisticated intricacies of
hand surgery, if he undertakes a procedure to set
a fractured metacarpal, he must at minimum be aware
of the dangers of immobilizing a joint in a position
which does not accord with the standard literature.
The defendant as a physician who specializes in
orthopaedics, should and must be aware of the
danger of secondary contractures which may result
from inappropriate immobilization.

[16] Given this context, I see no error in the trial judge’s
reasons on the applicable standard of care. It is clear from his
reasons as a whole that he applied a standard of care which was
appropriate to Dr. Halpenny’s circumstances and his level of
expertise. Applying this standard, the trial judge found that the
manner in which Dr. Halpenny immobilized Mr. Robinson’s hand “met
neither of the criteria adopted by Dr. Wright or by Dr. Richard
[the two medical experts called at trial] nor does it accord with
the recommended literature.” The trial judge also noted that
“[o]n Dr. Halpenny’s own admissions he has failed to meet the
recommended criteria for immobilization of the hand as reported
by Dr. Richards, and for which the defence expert does not differ
greatly.”

[17] Hence, the trial judge’s conclusion that Dr. Halpenny had
breached the standard of care in his treatment of Mr. Robinson’s
fracture was based on correct principles of law and was amply
supported by the evidence.

Causation

[18] On the issue of causation, counsel for the appellant takes
particular issue with the trial judge’s interpretation of the
Supreme Court of Canada’s decision in Snell v. Farrell, [1990] 2
S.C.R. 311. Counsel submits that the trial judge erred when he
stated “I accept the language of Snell v. Farrell, that the
plaintiff need only prove that the defendant created a risk of
harm, and that the injury occurred within the area of the risk.”
It is argued that the Supreme Court expressly rejected this
proposition as evidenced by the following excerpt from the
unanimous judgment of the Court authored by Sopinka J. (at
pp. 326-27):

Causation is an expression of the relationship that
must be found to exist between the tortious act of
the wrongdoer and the injury to the victim in order
to justify compensation of the latter out of the
pocket of the former. Is the requirement that the
plaintiff prove that the defendant's tortious conduct
caused or contributed to the plaintiff's injury too
onerous? Is some lesser relationship sufficient to
justify compensation? I have examined the alternatives
arising out of the McGhee case. They were that the
plaintiff simply prove that the defendant created a
risk that the injury which occurred would occur. Or,
what amounts to the same thing, that the defendant
has the burden of disproving causation. If I were
convinced that defendants who have a substantial
connection to the injury were escaping liability
because plaintiffs cannot prove causation under
currently applied principles, I would not hesitate
to adopt one of these alternatives. In my opinion,
however, properly applied, the principles relating
to causation are adequate to the task. Adoption
of either of the proposed alternatives would have the
effect of compensating plaintiffs where a substantial
connection between the injury and the defendant's
conduct is absent. Reversing the burden of proof
may be justified where two defendants negligently
fire in the direction of the plaintiff and then by
their tortious conduct destroy the means of proof at
his disposal. In such a case it is clear that the
injury was not caused by neutral conduct. It is
quite a different matter to compensate a plaintiff
by reversing the burden of proof for an injury that
may very well be due to factors unconnected to the
defendant and not the fault of anyone. [Emphasis added.]

[19] I agree with counsel for the appellant that the trial
judge’s statement, when considered on its own, contradicts the
above-noted excerpt from Snell v. Farrell where the Court clearly
rejects the proposition in the decision of the House of Lords in
McGhee, that the plaintiff need only prove that the defendant
created a risk that the injury which occurred would occur.
However, both the excerpt from the judgment in Snell v. Farell
and the trial judge’s reasons must be considered in context.

[20] While the Supreme Court rejected the proposition arising
from the decision in McGhee, it is clear from the above-noted
excerpt that this proposition was rejected because its
application would in effect serve to reverse the ultimate burden
of proof on the issue of causation. This does not mean, however,
that the fact that a “plaintiff created a risk that the injury
which occurred would occur” is irrelevant to the issue of
causation. While proof of this fact by a plaintiff will not
effect a reversal of the burden of proof, it may well result in
an inference of causation being drawn adverse to the defendant.
The following further excerpt from Snell v. Farrell (at pp. 328-
29) may be useful to consider:

In many malpractice cases, the facts lie particularly
within the knowledge of the defendant. In these
circumstances, very little affirmative evidence on
the part of the plaintiff will justify the drawing of
an inference of causation in the absence of evidence
to the contrary. This has been expressed in terms of
shifting the burden of proof.

[21] After referring to several cases that spoke of a reversal or
shifting of onus, Sopinka J. commented on these authorities as
follows:

These references speak of the shifting of the secondary
or evidential burden of proof or the burden of adducing
evidence. I find it preferable to explain the process
without using the term secondary or evidential burden.
It is not strictly accurate to speak of the burden
shifting to the defendant when what is meant is that
evidence adduced by the plaintiff may result in an
inference being drawn adverse to the defendant. Whether
an inference is or is not drawn is a matter of weighing
evidence. The defendant runs the risk of an adverse
inference in the absence of evidence to the contrary.
This is sometimes referred to as imposing on the
defendant a provisional or tactical burden. See Cross,
op. cit., at p. 129. In my opinion, this is not a
true burden of proof, and use of an additional label to
describe what is an ordinary step in the fact-finding
process is unwarranted.
The legal or ultimate burden
remains with the plaintiff, but in the
absence of evidence to the contrary adduced
by the defendant, an inference of causation
may be drawn although positive or scientific
proof of causation has not been adduced. If
some evidence to the contrary is adduced by
the defendant, the trial judge is entitled to
take account of Lord Mansfield's famous
precept. This is, I believe, what Lord
Bridge had in mind in Wilsher when he
referred to a "robust and pragmatic approach
to the ... facts" (p. 569).

[22] It is clear from the totality of the trial judge’s reasons
that he clearly understood that the Supreme Court of Canada in
Snell v. Farrell had rejected the proposition that the onus
should be reversed in medical malpractice cases and, instead,
adopted the flexible approach to the proof of causation set out
above. Before considering the evidence, the trial judge reviewed
the relevant law on standard of care. His analysis, in part,
reads as follows:

Where an allegation of breach of a medical standard
of care is raised, the initial question that arises
is upon whom is the burden of proof placed. Ordinarily
the onus is upon those who make the claim. There was
however a period where the legal maximum [sic] of res
ipsa locquitor [sic] flourished.

[23] The trial judge then reviewed some of the relevant
jurisprudence and concluded as follows:

This legal principal [sic] which it is
said, shifted the onus of proof upon the
defendant to explain at the outset, no longer
holds favour in our jurisprudence. It is
considered an unnecessary legal maxim. It is
replaced by the common law rule that has
always existed, that the plaintiff establish
a prima facie breach of the standard of care
required which may be satisfied by circumstantial
evidence. Where the circumstantial evidence
presented, establishes a reasonable inference of
negligence against the physician, such inference
requires an explanation to show there was no
negligence. Where this inference is not removed
by evidence from the defendant, then in this
instance as confirmed by our courts, it should
be enough to satisfy the onus of proof.
This is particularly true where the
facts are not equally consistent with no
negligence as with negligence.
…
As commented by Justice Sopinka in
Fontaine v. British Columbia, 1997 S.C.J.
100, Paragraph 17, in doing away with the
principle of res ipsa loquitor [sic], he puts
his thoughts in these terms;
“…correctly understood, [it]
means that circumstantial evidence
constitutes reasonable evidence of
negligence… [and] if at the conclusion of the
case, it would be equally reasonable to infer
negligence or no negligence, the plaintiff
will lose since he/she bears the legal burden
on this issue. Under this construction, the
maxim is superfluous, it can be treated
simply as a case of circumstantial evidence.
. . .
As shown in Snell v. Farell, 72 D.L.R.
(4th) 289, negligence can be found based on
reasonable inferences. The defendant’s being
unable to provide sufficient evidence to
rebut the reasonable inference of negligence,
the Supreme Court of Canada was able to
satisfy itself that on the fact situation
before them, on a balance of probabilities,
the case of negligence was made out. In
coming to this determination, the court found
that the evidence adduced by the plaintiff
was sufficient to support an inference of
causation based on common sense, despite the
absence of positive medical opinions.
Significant to the Supreme Court of
Canada’s determination as it relates to the
plaintiff’s obligation to establish a breach
of the standard of care in a medical
malpractice suit is the additional
requirement of causation as it relates to the
complained of injury. It is here where the
court speaks of its acceptance, that where on
the totality of the evidence, the inference
is raised as to negligence, which is directly
related to the cause of harm, then it is not
strictly accurate to speak of the burden
shifting to the defendant. It is rather that
the evidence adduced by the plaintiff may
result in an inference being drawn adverse to
the defendant where there is an absence of
evidence to the contrary.

[24] After referring to the recent Supreme Court of Canada
decision in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 where the court
reiterated that the onus is on the plaintiff to prove causation
and that causation may be inferred from the evidence, the trial
judge concluded as follows:

It is with these principles that the evidence
before me is to be applied to determine if the
plaintiff has satisfied both a breach of the
standard of care and a causal relationship to
the injury complained of.

[25] Despite the trial judge’s apparent misunderstanding of one
aspect of Sopinka J.’s analysis in Snell v. Farrell, I am
satisfied, given the entirety of his reasons, that he correctly
instructed himself on the law of causation. He correctly
understood that an inference of causation may be drawn from the
evidence even in the absence of scientific or medical certainty
and, although the burden of proof remains on the plaintiff, an
absence of evidence to the contrary adduced by the defendant will
be weighed in the balance in determining what inferences should
properly be drawn from the evidence. The question remains whether
he correctly applied these principles to the evidence.

[26] Most of the trial judge’s reasons relate to the standard of
care issue and his conclusions on causation are also intertwined
with the question of standard of care. The two issues appeared to
have been meshed together as a result of the approach taken by
the medical experts who testified at trial. In particular, Dr.
Wright, who testified on behalf of the defence, linked the issue
of causation to the question of standard of care. In his view, it
could not be said that Dr. Halpenny fell below the standard of
care by failing to follow the recommended procedure in
immobilizing Mr. Robinson’s hand because there was no established
scientific certainty as to the cause of contractures based on a
position of immobilization. On the other hand, Dr. Richards, who
testified on behalf of Mr. Robinson, stated that the purpose of
following the recommended procedure in immobilizing the hand was
to avoid contractures. He testified that the most probable result
of the failure to immobilize the hand properly was a much higher
risk of joint contractures. Dr. Richards also testified that any
subsequent problems that may occur such as RSD, a condition that
may result from the injury itself, would become more difficult to
treat because the subsequent problem would start when the hand is
already in a poor position. Hence, on Dr. Richards’ evidence, Dr.
Halpenny’s failure to properly immobilize the hand also
contributed to the subsequent development of RSD. The trial judge
accepted the evidence of Dr. Richards on this issue and concluded
on the totality of the evidence that there was a causal link
between the improper immobilization, the contractures and the
ultimate condition suffered by Mr. Robinson. His reasons, in
part, read as follows:

. . . Dr. Halpenny failed to minimize the
risks in his treatment of the plaintiff. In so
doing he failed to meet the required standard
of care in the immobilization and treatment of
the metacarpal fracture. It is from this failure,
that I find there is a clear inference of a
breach of the standard of care in the treatment
of the plaintiff and a direct causal connection
to the problems suffered by the plaintiff.
I do not accept, or do I find, that
Dr. Wright's evidence overcomes the inference
of negligence. In this regard, I accept in
totality the evidence of Dr. Richards.
Wherever Dr. Wright's evidence may differ as
to the proper and reasonable standards of
treatment to be followed by the defendant, I
prefer the evidence of the plaintiff expert.
In my analysis of the evidence, and
in arriving at my conclusions, I have noted
from a review of the evidence of the experts,
that when we analyze their testimony,
Dr. Wright's evidence of recommended
treatment does not differ greatly from that
of Dr. Richards. This is true even though
each medical expert may prefer a different
position for the immobilization of a
metacarpal fracture. What is significant is,
that Dr. Halpenny's procedures do not conform
to either experts testimony. Where
Dr. Wright differs from Dr. Richards is in
his ultimate conclusion. Dr. Wright does not
conclude that Dr. Halpenny fell below the
required standard of care because there is no
available scientific certainty as to the
cause of contractures based upon a position
of immobilization. There is nonetheless
evidence which I accept minimizes the risk of
contractures based on the position of
immobilization. Dr. Halpenny in failing to
minimize those risks, fell below the
reasonable standard of care required. He
failed to provide the degree of skill and
care necessary which is well documented by
the medical literature which I find to be
directly related to the injuries sustained by
the plaintiff.
In arriving at these conclusions, I
accept the language of Snell v. Farrell, that
the plaintiff need only prove that the
defendant created a risk of harm, and that
the injury occurred within the area of the
risk. On the question of causation, the
inference is clear from the evidence. The
cause of the plaintiff's existing complaint
results from the breach of the standard of
care required in the treatment of the
plaintiff's metacarpal fracture. With these
conclusions, I find that the complications to
the plaintiff's injuries that followed are
also interconnected with the defendant's
failure, in his original treatment to the
plaintiff.

[27] In my view, it was entirely open to the trial judge on the
evidence to find that the contractures suffered by Mr. Robinson
upon removal of the cast and his resulting permanent disability
following the onset of RSD were causally linked to the improper
immobilization of the hand by Dr. Halpenny. This conclusion was
not only supported by the medical evidence accepted by the trial
judge but was also a reasonable common sense inference from the
totality of the evidence. I see no reason to interfere.

[28] In view of his conclusion on causality, the trial judge did
not find it necessary to make any definitive findings on Mr.
Robinson’s secondary complaint, the follow-up treatment by Dr.
Halpenny. Mr. Robinson’s secondary complaint was that Dr.
Halpenny had failed to recognize the symptoms of RSD and to take
appropriate action. The trial judge stated as follows:

In the situation before me, I have concluded,
that Dr. Halpenny fell below the standard of care
required of him in his casting and positioning of
the plaintiff's injured hand. For this reason I
need not determine whether RSD within the
circumstances presented should have been diagnosed
and or treated by Dr. Halpenny on the 19th of
August 1993.
…
Although there is uncertainty in the
evidence of whether the symptoms of RSD
presented themselves to Dr. Halpenny, in my
consideration of the totality of the
plaintiff’s problem, I find that they all
relate back to the defendant’s initial
failures.

[29] Counsel for the appellant submits that the trial judge did
not seem to appreciate the fact that RSD, as explained by the
medical experts, is a condition that probably resulted from the
fracture itself and not from Dr. Halpenny’s fault. He therefore
submits that the trial judge erred in failing to deal with this
secondary issue and to determine the extent to which the injury
was caused by RSD as opposed to being caused by any fault
attributed to Dr. Halpenny.

[30] I do not agree. The Supreme Court of Canada makes it clear
in Athey v. Leonati, supra, that any apportionment between
tortious and non-tortious causes is contrary to principles of
tort law because the defendant would escape full liability even
though he or she caused or contributed to the plaintiff’s entire
injuries. Once the trial judge found, as he was entitled to do on
the evidence, that Dr. Halpenny’s initial treatment of the
fracture was causally connected not only to the contractures
suffered upon removal of the cast but also to the aggravated
subsequent condition, it was unnecessary for him to proceed any
further. As a result of his finding on causality, Dr. Halpenny
was liable with respect to Mr. Robinson’s entire injury. Any
finding that Dr. Halpenny was, or was not, further negligent in
his treatment of Mr. Robinson’s subsequent RSD and if so, to what
extent, would not have added anything to the analysis. However,
the trial judge’s conclusion that it was not necessary to deal
with the secondary complaint may have led him to mistakenly
believe that it was not necessary for him to deal with any of the
issues arising from the follow-up treatment, including the
question of contributory negligence. The question of contributory
negligence raises a different issue which brings me to the next
ground of appeal.

Contributory Negligence

[31] It was Dr. Halpenny’s position at trial that Mr. Robinson
had contributed to his injury by stopping physiotherapy on his
own initiative before the course of treatment had been completed.
The trial judge did not deal with the issue of contributory
negligence in his reasons. Counsel for the appellant submits that
this court ought to find on the evidence that Mr. Robinson’s
negligence materially contributed to the severity of his injury
and, consequently, submits that this court should reduce the
overall award of damages by 50%.

[32] Counsel for Mr. Robinson takes the position that the trial
judge did not err in failing to deal with the allegation of
contributory negligence because it was never proven at trial.
Counsel submits that there was no evidence to support the
allegation.

[33] Given that the issue of contributory negligence was raised
at trial, the trial judge should have dealt with it in his
reasons. Although it was not necessary for the trial judge to
make any apportionment between the two alleged tortious acts of
Dr. Halpenny, or between this tortious cause and any non-tortious
cause such as RSD, the question of contributory fault is a
different matter. If Mr. Robinson’s own fault materially
contributed to his injury, Dr. Halpenny is entitled to an
apportionment. In light of the trial judge’s failure to deal with
this issue, it is necessary for this court to consider the record
on this issue.

[34] Having considered the record, it is my view that the
evidence does not reasonably support a finding of contributory
negligence. Although some support for the appellant’s contention
that Mr. Robinson stopped the physiotherapy too early can be
found in Dr. Wright’s testimony, the evidence of Dr. Richards
deals more specifically with the appropriateness of the
prescribed physiotherapy and hence is more helpful in assessing
the effect, if any, of Mr. Robinson’s actions. I find it
noteworthy in considering this issue that the trial judge
preferred the evidence of Dr. Richards to that of Dr. Wright
throughout. Dr. Richards’ evidence was that the physiotherapy
prescribed by Dr. Halpenny was inappropriate and making the
situation worse, and that any reasonable person would stop
treatment that was making the situation worse rather than better.
Mr. Robinson also testified that the physiotherapy was “torture”
and was not helping him. It is for that reason that he went to
see his family doctor and asked for another kind of treatment.
This is important to note because, as pointed out by the
appellant, Dr. Richards stated on cross-examination that he
thought it was inappropriate for a patient to stop physiotherapy
on his own “[w]ithout providing some feedback to a health care
professional to see if there is another alternative”. Although
Mr. Robinson stopped his physiotherapy, he also provided feedback
to his family doctor and sought an alternative treatment. In all
the circumstances, I find that the trial judge made no reversible
error in failing to deal with the issue of contributory
negligence as the claim was simply not made out.

Damages

[35] I see no reason to interfere with the trial judge’s
assessment of general damages. In my view, the award is not so
out of line with other authorities as to merit appellate
intervention as contended by counsel for the appellant. I also
see no reason to interfere with the award of damages for future
loss of income. The award was based on the trial judge’s finding
that Mr. Robinson “will sustain a permanent and continuous loss
of some future income”. In my view, this finding was supported by
the evidence of Mr. Robinson’s permanent loss of capacity to
work, particularly in his preferred field of repairing small
engines. There was also evidence that Mr. Robinson would have
had a reasonable prospect of taking over his father’s part-time
business in that field upon his father’s retirement.

[36] However, I am of the view that there was no basis for
awarding damages for past loss of income. After reviewing the
relevant evidence, the trial judge himself stated as follows:

For these reasons, I do not conclude or am I
impressed that there was any appreciable loss
of past earnings.

[37] Nonetheless, he “assume[d]” a past loss of income of $5,000
per year from August 1993, the time from which Mr. Robinson
“possibly would have been in a position to begin re-employment”.
There was no proper basis for making this award. Mr. Robinson was
not working at the time of the accident and had not worked for
some time. This was largely due to the prevailing economic
conditions in the area in which he lived, a situation which
essentially continued until shortly before the trial, as
evidenced by a report relied upon by the trial judge on this
issue.

Conclusion

[38] I would therefore allow the appeal only with respect to the
award for past loss of income and reduce the total award
accordingly. Counsel for the appellant advised the court that the
disposition of costs in the judgment reflects an offer to settle
and the effect of Rule 49.10(1) of the Rules of Civil Procedure.
If the reduction in the quantum of damages on this appeal affects
this disposition, the appellant may serve and file written
submissions within fifteen days of this judgment on the issue of
costs at trial and the respondent may respond within ten days
thereafter. Otherwise, the costs award at trial will stand.

[39] In view of the fact that the appellant’s success on the
appeal was limited, I would award him 20% of his costs of the
appeal.

(signed) "Louise Charron J.A."

(signed) "I agree J. J. Carthy J.A."

(signed) "I agree M. Rosenberg J.A."

RELEASED: March 9, 2000