Frazer et al. v. Haukioja [Indexed as: Frazer v. Haukioja]

101 O.R. (3d) 528

2010 ONCA 249

Court of Appeal for Ontario,

MacPherson, Simmons and LaForme JJ.A.

April 7, 2010

Damages -- Personal injuries -- Loss of future income -- Trial judge not erring in applying only general and not specific reduction to plaintiff's future loss of income claim -- Specific adjustment not to be made in absence of clear evidence.

Torts -- Negligence -- Causation -- Defendant doctor failing to diagnose talar fracture to plaintiff's right ankle, delaying informing plaintiff of existence of fracture after radiology report became available and downplaying seriousness of fracture -- Plaintiff discovering that fracture was serious and developing anxiety disorder with features of panic disorder -- Trial judge not erring in finding that causation between defendant's negligence in failing to inform plaintiff in timely manner of existence and seriousness of fracture and plaintiff's psychiatric condition was established on "but for" test -- Trial judge erring in going on to find in alternative that causation was established on material contribution test but that error having no impact on his final decision.

Torts -- Negligence -- Foreseeability -- Defendant doctor failing to diagnose talar fracture to plaintiff's right ankle, delaying informing plaintiff of existence of fracture after radiology report became available and downplaying seriousness of fracture -- Plaintiff discovering that fracture was serious and developing anxiety disorder with features of panic disorder -- Relationship between parties such that it should have been within defendant's contemplation that non-disclosure could give rise to psychiatric illness. [page529]

The defendant treated the plaintiff in an emergency room following a motorcycle accident and diagnosed a left-ankle fracture and a right-ankle soft-tissue injury. The plaintiff continued to complain of pain in his right ankle, and a radiologist examining his X-rays two weeks after the accident noticed a talar fracture in his right ankle. The defendant did not inform the plaintiff of that fracture until a follow-up appointment more than a month later, and then discounted the seriousness of the fracture. The plaintiff was subsequently advised by another doctor that he had a major fracture in his right ankle. The ankle fracture healed satisfactorily, but the plaintiff developed an anxiety disorder with features of panic disorder. The trial judge found that the plaintiff's psychiatric condition was caused by the defendant's failure to inform him in a timely manner of the existence and seriousness of the right-ankle fracture. He found that causation was established on the "but for" test, and in the alternative, found that the plaintiff had proven causation on the "material contribution" test. He awarded the plaintiff general damages of $150,000 for the psychiatric injury, $282,378 for past lost income, $1,298,429.94 for future loss of income and $14,911.44 for future care costs. He awarded costs to the plaintiff in the amount of $929,168.76. The defendant appealed.

Held, the appeal should be dismissed.

On the issue of factual causation, the trial judge accepted expert evidence that there were three causative factors behind the plaintiff's psychiatric injury: the difference between the true severity of the talus fracture and what was conveyed by the defendant; the plaintiff's belief that he was "medically mistreated" and "deliberately harmed"; and the plaintiff's belief that he contributed to his own disability by walking on his ankle. The trial judge erred in applying the "material contribution" test after concluding that causation was established on the "but for" test. However, that error had no impact on his final decision. He correctly applied the "but for" test, and correctly concluded that but for the defendant's negligence, the plaintiff would not have suffered psychiatric harm.

The nature of the relationship between the parties was such that it should have fallen within the defendant's contemplation that non-disclosure could give rise to a recognized psychiatric illness of the nature suffered by the plaintiff. Once the foreseeability of psychiatric damage in a person of reasonable fortitude is established, the defendant must take the plaintiff as it finds him for purposes of damages. Thus, it was not necessary that the plaintiff prove that it was reasonably foreseeable that a person of normal fortitude would have suffered an anxiety disorder and depression. Once it was established that it was reasonably foreseeable that a person of reasonable fortitude would suffer some compensable mental injury, the defendant had to take the plaintiff as he found him. There was no evidence that the plaintiff was anything but a person of ordinary mental fortitude.

The trial judge correctly considered whether the plaintiff's injuries would have prevented him from working from the time he returned to work up to the time of trial. He applied only a general and not a specific reduction to the plaintiff's future loss of income claim, which was consistent with the principle that no such adjustment should be made in the absence of clear evidence, because to do otherwise would be mere speculation.

There was no reason to interfere with the trial judge's decision on costs. In taking into account "the amount of costs that an unsuccessful party could reasonably expect to pay", the trial judge noted the defendant's failure to provide adequate information as to his own legal costs. That decision was consistent with the authorities. [page530]

APPEAL from the judgment of Moore J., [2008] O.J. No. 3277, 2008 42207 (S.C.J.) for the plaintiff in a personal injury action.

Cases referred to Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 2007 SCC 7, 278 D.L.R. (4th) 643, 357 N.R. 175, [2007] 4 W.W.R. 1, J.E. 2007-333, 69 Alta. L.R. (4th) 1, 404 A.R. 333, [2007] R.R.A. 1, 45 C.C.L.T. (3d) 1, 153 A.C.W.S. (3d) 1012, EYB 2007-113553, apld Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 165 A.C.W.S. (3d) 954, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130, affg (2006), 2006 41807 (ON CA), 84 O.R. (3d) 457, [2006] O.J. No. 4964, 275 D.L.R. (4th) 473, 218 O.A.C. 271, 43 C.C.L.T. (3d) 27 (C.A.), distd Other cases referred to Andersen v. St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508, 264 D.L.R. (4th) 557, 208 O.A.C. 10, 145 A.C.W.S. (3d) 786 (S.C.J.); Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 523, [1977] E.G.D. 604 (H.L.); Canadian Pacific v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, 122 D.L.R. (4th) 129, 177 N.R. 325, J.E. 95-232, 26 Admin. L.R. (2d) 1, [1995] 2 C.N.L.R. 92, 52 A.C.W.S. (3d) 1185; Duwyn v. Kaprielian (1978), 1978 1271 (ON CA), 22 O.R. (2d) 736, [1978] O.J. No. 3663, 94 D.L.R. (3d) 424, 7 C.C.L.T. 121, [1978] 3 A.C.W.S. 336 (C.A.); Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314, 74 D.L.R. (4th) 1, 40 O.A.C. 301, 23 A.C.W.S. (3d) 288 (C.A.); Hague v. Liberty Mutual Insurance Co., 2005 13782 (ON SC), [2005] O.J. No. 1660, [2005] O.T.C. 290, 21 C.C.L.I. (4th) 300, 13 C.P.C. (6th) 37, 138 A.C.W.S. (3d) 804 (S.C.J.); Heywood v. Wellers, [1976] Q.B. 446 (C.A.); Hughes v. Lord Advocate, [1963] A.C. 837, [1963] 1 All E.R. 705, [1963] 2 W.L.R. 779, 1963 S.C. 31 (H.L.); Ontario (Ministry of Highways) v. Côté, 1974 31 (SCC), [1976] 1 S.C.R. 595, [1974] S.C.J. No. 155, 51 D.L.R. (3d) 244, 3 N.R. 341; Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engineering Co. (The Wagon Mound (No. 1)), [1961] A.C. 388 (P.C.); Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (Mound No. 2), [1966] 2 All E.R. 709, [1967] 1 A.C. 617 (P.C.); Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 2863 (ON CA), 48 O.R. (3d) 228, [1999] O.J. No. 4599, 180 D.L.R. (4th) 748, 127 O.A.C. 286, 93 A.C.W.S. (3d) 268 (C.A.); White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455, [1999] 1 All E.R. 1, 45 B.M.L.R. 1, [1998] 3 W.L.R. 1509, [1999] I.C.R. 216, [1999] I.R.L.R. 110 (H.L.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1) Family Law Act, R.S.O. 1990, c. F.3 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 57.01, (1)(0.b) Authorities referred to Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Toronto: LexisNexis Canada, 2006)

Earl A. Cherniak, Q.C., and Jasmine Akbarali, for appellant. Brian J.E. Brock, Q.C., and Joy Stothers, for respondents. [page531]

The judgment of the court was delivered by

[1] LAFORME J.A.: -- The trial judge found that the appellant, Dr. Haukioja, was not negligent in his treatment of the respondent Grant Frazer while at the hospital, but that on a later date, when the radiology report became available, he breached the standard of care in not advising Mr. Frazer of his talus fracture. The damages that flowed from the failure to advise Mr. Frazer of his talus fracture until the point that he became aware of it were assessed by the trial judge at $2,500.

[2] In addition, the trial judge made the following award of damages to Mr. Frazer: $150,000 for generals relating to the psychiatric injury; $283,378 for past lost income; $1,298,429.94 for future loss of income; and $14,911.44 for future care costs. Further, the trial judge awarded $50,000 for Family Law Act, R.S.O. 1990, c. F.3 damages to Jennifer Smith. And finally, in supplementary reasons, the trial judge awarded costs to the respondents in the amount of $929,168.76.

[3] Dr. Haukioja appeals from the decision. He contends that the judgment should be set aside and no damages be awarded to Grant Frazer for his psychiatric illness. In the alternative, he asks that the judgment be varied by reducing damages for past and future loss of income or, in the further alternative, he seeks a new trial. He also seeks an order varying the costs award. Background

[4] Grant Frazer was in a motorcycle accident on November 25, 2001. He was taken to the emergency room at Northumberland Hospital where Dr. Haukioja was the attending physician. Dr. Haukioja was a charismatic, humorous and confident man. He joked around and spoke to Mr. Frazer about motorcycles as he performed his duties. X-rays and a CT scan were performed. Among Mr. Frazer's other injuries, Dr. Haukioja diagnosed a left-ankle fracture and a right-ankle soft-tissue injury. A cast was placed on the left ankle only.

[5] Mr. Frazer was admitted for observation. When he complained of continuing pain in his right ankle, Dr. Haukioja advised that the pain was a necessary part of recovery and that he had to work through it. Mr. Frazer was discharged by another doctor on December 2, 2001, with a follow-up appointment with Dr. Haukioja scheduled for January 10, 2002.

[6] It was not until December 6, 2001 that the radiologist, Dr. Marrocco, examined Mr. Frazer's X-rays. He immediately noticed a talar fracture in Mr. Frazer's right ankle. Dr. Marrocco [page532] duly prepared and faxed a report to Dr. Haukioja. He met with Dr. Haukioja at Northumberland Hospital later that day to discuss the fracture. The two men examined the X-ray image together.

[7] Dr. Haukioja made no effort to communicate with Mr. Frazer until the follow-up appointment on January 10, 2002. Although Dr. Haukioja advised Mr. Frazer on that day that he had missed a right-ankle fracture, he characterized the fracture as tiny, barely visible and not requiring treatment. He suggested that the continuing pain was attributable to soft- tissue damage. He reiterated that Mr. Frazer had to work through the pain in order to recover, and further advised that Mr. Frazer could stop using crutches and return to work. Dr. Haukioja then ordered another set of X-rays.

[8] In accordance with Dr. Haukioja's advice, Mr. Frazer returned to work on January 14, 2002. He found the physical demands of working to be exhausting. On January 15, 2002, he experienced four separate attacks of severe pain in his right ankle. He described them as "dental shocks" because the pain was similar to what one would experience when a cavity is drilled without anaesthetic.

[9] As a result of the pain, Mr. Frazer attended at a walk-in clinic at the end of the day on January 16, 2002. He was seen by Dr. Woodward, who undertook to review his hospital chart. Dr. Woodward subsequently advised that Mr. Frazer had a "major fracture" in his right ankle that might require surgical intervention. He referred Mr. Frazer to Dr. Blastorah, an orthopaedic surgeon.

[10] On January 23, 2002, Mr. Frazer met with Dr. Blastorah. It was at this meeting that Mr. Frazer was first apprised of the seriousness of his injury and the potential complications. He learned that the complications that could arise included arthritis, avascular necrosis (death of the bone as a result of an interruption of the blood supply) and the possibility that he might need surgery to fuse a joint in his ankle.

[11] When Mr. Frazer realized the full extent of his injuries, he became focused on the fact that Dr. Haukioja had lied to him. This led to Mr. Frazer being "hyper alert" and "hyper aware" as to why he was not called by Dr. Haukioja, why he was permitted to walk on a fractured ankle and why he was allowed to injure himself.

[12] Mr. Frazer saw a psychiatrist, Dr. Joel Sadavoy. Dr. Sadavoy saw him three times between December 13, 2005 and January 5, 2006, and once in October 2007, and concluded that Mr. Frazer suffers from an anxiety disorder with features of panic disorder [page533] and presents with elements of depressive, emotional states that are intermittent.

[13] The trial judge found that the psychiatric diagnosis of Mr. Frazer was totally as a result of Dr. Haukioja's failure to properly treat his patient.

The trial decision

(i) Credibility findings

[14] The trial judge rejected the evidence of Dr. Haukioja to the extent that it conflicted with the testimony of Grant Frazer, Jennifer Smith or Dr. Marrocco.

[15] Three psychiatrists testified: Dr. Sadavoy for Mr. Frazer, Dr. Neal and Dr. Reznek for Dr. Haukioja. The trial judge preferred Dr. Sadavoy's evidence. Dr. Neal's independence and impartiality were called into question by the nature of his communications with counsel, his methodology and his demeanour in the witness box.

[16] The trial judge rejected [at para. 154] Dr. Reznek's opinion because he was "[c]herry picking facts that support a diagnosis that just happens to support the cause of the client . . . and failing to include the facts that hurt the cause, whether those latter facts are capable of explanation and elimination in the course of the development of the expert's analysis and opinion or not".

[17] Dr. McCall was Mr. Frazer's treating orthopaedic surgeon. The trial judge found that while most of his evidence was helpful, his testimony regarding potential displacement in the sub-talar joint was not balanced and fair. He preferred the opinions of Dr. Haukioja's witnesses, Dr. Rubenstein and Dr. Sanders.

(ii) Standard of care

[18] The trial judge found that Dr. Haukioja's incorrect interpretation of Mr. Frazer's November 25, 2001 right-ankle X- ray did not breach the standard of care. His reasons included: that Dr. Rubenstein testified that the quality of the image was "sub-optimal" and that talar fractures are an uncommon injury. Indeed, he noted that Dr. Haukioja had never before diagnosed such an injury.

[19] Mr. Frazer was discharged from the hospital on December 2, 2001, although the radiology report for the right-ankle X- ray was missing from his chart. Nevertheless, the trial judge found that Dr. Haukioja did not authorize the discharge and therefore was not liable for failing to notice that the report was missing.

[20] However, the trial judge did find that Dr. Haukioja breached the standard of care by failing to take active steps [page534] following December 6, 2001 to advise Mr. Frazer of the right-ankle fracture. Further, he found that Dr. Haukioja's breach extended past the follow-up appointment on January 10, 2002, in which Dr. Haukioja continued to misrepresent the extent of the injury. And finally, the trial judge found that Dr. Haukioja missed yet another opportunity to fulfil his duties when the January 10, 2002 X-rays confirmed the existence and severity of the fracture -- all of which I refer to collectively as "the non-disclosure".

(iii) Causation and damages

(a) Physical injury

[21] The trial judge found that the non-disclosure did not cause any permanent injury to Mr. Frazer's right ankle. He accepted the opinions of Dr. Rubenstein and Dr. Sanders that there is no clinically significant change in the alignment of the sub-talar joint.

[22] However, the parties agreed that weight-bearing of any kind on Mr. Frazer's right ankle must have been very painful. The trial judge accepted Mr. Frazer's evidence that he experienced significant pain between the accident and when his right ankle was finally immobilized by a cast. And, as I noted earlier, he awarded general damages for pain, suffering and loss of amenities in the amount of $2,500.

(b) Psychiatric injury

[23] Dr. Sadavoy diagnosed an anxiety disorder with features of panic disorder. The panic disorder is recurrent and can be disabling in and of itself; it is further aggravated by agoraphobia. Although Mr. Frazer presents with intermittent depressive states, these were insufficient to support a diagnosis of a depressive disorder. Similarly, although his personality has changed dramatically, Mr. Frazer does not suffer from a personality disorder.

[24] Dr. Sadavoy described the progress of Mr. Frazer's psychiatric injury as follows: -- Mr. Frazer experiences ankle pain. The pain has a known physical cause. He accepts the pain as a necessary part of the recovery process. -- Mr. Frazer continues to experience ankle pain. The pain has a known physical cause, but due to the additional pain caused by weight-bearing, the pain has transformed into a symbol of Haukioja's wrong. The following factors contribute to this transformation: [page535] -- the difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja; -- Mr. Frazer's belief that he was "medically mistreated" and "deliberately harmed"; and -- Mr. Frazer's belief that he contributed to his own disability by walking on the ankle. -- The transformation in the meaning of pain translates into the anxiety disorder. Anxiety can lead to a more intense pain response. This creates a self-reinforcing cycle. -- Mr. Frazer continues to experience ankle pain. The pain has no identifiable physical cause. This causes the pain to interact with Mr. Frazer's anxiety and fear; in other words, his pain experience is intensified by the fact that its cause is unknown.

[25] The trial judge concluded that there was no evidence to support a finding that Dr. Haukioja bore any ill will toward Mr. Frazer or acted in a manner that deliberately exposed Mr. Frazer to risk. Nonetheless, he held that causation was established on the "but for" test. In the alternative, he found that if he was wrong to apply the "but for" test, it would be appropriate to consider whether liability can be imposed by application of the material contribution test. He then found that the respondent had proven causation on the material contribution test.

Position of the Parties

[26] The appellant, Dr. Haukioja submits that the trial judge was in error because: (1) the damages are too remote since Dr. Haukioja could not reasonably foresee that a person of ordinary fortitude would conclude the delayed diagnosis was deliberate and then go on to develop a psychiatric illness as a result of focusing on the alleged malevolence; (2) no evidence established that, "but for" his conduct, as distinct from Grant Frazer's reaction to it, the psychiatric illness would not have developed; causation was not established. Moreover, the trial judge could not find that if he was wrong to apply the "but for" test, the "material contribution" test could be used; [page536] (3) in any event, the damages should be reduced to account for specific contingencies related to the respondent's ankle injury; and (4) the costs award is unreasonable.

[27] The respondent Grant Frazer submits that the trial judge made no errors because: (1) there is no basis in fact or law to separate the natural and physical emotional reaction to trauma experienced by Grant Frazer into two separate and artificial entities, one physical and one psychological. The proper test for foreseeability is for a court to contemplate "some degree" of psychiatric damage, linked to the facts and surrounding circumstances; (2) the "but for" test does not require Dr. Haukioja's negligence be the only cause of Mr. Frazer's damages. There is no rule that the "but for" test and the "material contribution" test of causation are mutually exclusive; [and] (3) the trial judge's approach to Mr. Frazer's future loss of income claim is correct since there was no clear evidence to do otherwise. The trial judge awarded costs under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as informed by rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in a proper exercise of his discretion.

[28] As I will explain, I would dismiss the appeal. In sum, I conclude that Dr. Haukioja has failed to show any reversible errors in the reasons for judgment of the trial judge. I reach this result for several reasons.

[29] First, while I agree that the trial judge erred in applying the "material contribution" test after he reasoned his way through the "but for" test, this error has no impact on his final decision. As I explain, he correctly applied the "but for" test. And, there is no reason, in my opinion, for this court to interfere with his decision that the psychiatric damage was caused, in fact and in law, by Dr. Haukioja's non- disclosure. That was sufficient to decide this issue as he did.

[30] Second, I hold that the nature of the relationship between Dr. Haukioja and Mr. Frazer was such that it should have fallen within Dr. Haukioja's contemplation that a breach of that trust could have ramifications for his patient's mental health. It was foreseeable, in my view, that Dr. Haukioja's non-disclosure could [page537] give rise to a recognized psychiatric illness of the nature suffered by Mr. Frazer.

[31] Finally, regarding damages, the trial judge correctly considered whether Mr. Frazer's injuries would have prevented him from working from the time he returned to work up to the time of trial. He applied only a general and not a specific reduction to Mr. Frazer's future loss of income claim, which is consistent with the principle that no such adjustment should be made in the absence of clear evidence, because to do otherwise would be mere speculation. As for his decision on costs, the trial judge did not consider irrelevant factors, fail to consider relevant factors or reach an unreasonable conclusion.

Analysis

Issues 1 and 2: Did Dr. Haukioja's actions cause Grant Frazer's psychiatric injury and are Grant Frazer's damages too remote to be recovered?

[32] Dr. Haukioja argues that the starting point for remoteness is the Supreme Court of Canada decision in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27. Grant Frazer argues that Mustapha is a unique case and is distinguishable from the case under appeal. Mustapha is indeed the appropriate starting point for an analysis of this appeal.

[33] McLachlin C.J.C. in Mustapha, at para. 3, sets out the elements of the tort of negligence:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant's breach.

[34] A brief comment on elements one through three of the above test is all that is necessary. As will be seen, only element four requires a more comprehensive analysis.

[35] Specific to this case, the doctor-patient relationship between Dr. Haukioja and Grant Frazer is clearly of a type that has already been judicially recognized as giving rise to a duty of care. In these circumstances, it becomes unnecessary to undertake a full analysis under Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.): see Mustapha, at para. 5. Element one is satisfied.

[36] The trial judge found that Dr. Haukioja became aware of the talar fracture on December 6, 2001. In light of this finding, Dr. Haukioja concedes that his conduct following that date fell below the standard of care. He acknowledges that he was [page538] required to take active steps to communicate the information to Frazer and failed to do so. Thus, element two is satisfied.

[37] Psychiatric damage is now accepted and recognized as a kind of injury that is compensable in an action for negligence. [See Note 1 below] General emotional upset, no matter how distressing, does not rise to the level of compensable psychiatric damage: see Duwyn v. Kaprielian (1978), 1978 1271 (ON CA), 22 O.R. (2d) 736, [1978] O.J. No. 3663, 7 C.C.L.T. 121 (C.A.), at p. 142 C.C.L.T. There must be "some physical symptoms like a heart attack or a miscarriage, or some 'recognizable psychiatric illness'": see A. Linden and B. Feldthusen, Canadian Tort Law, 8th ed. (Toronto: LexisNexis Canada, 2006) at 425-26; Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 2863 (ON CA), 48 O.R. (3d) 228, [1999] O.J. No. 4599 (C.A.), at para. 25.

[38] In this case, there is no question that Mr. Frazer has suffered a "recognizable psychiatric illness" sufficient to found a cause of action. All three experts agreed that he has developed a serious disorder resulting in a legitimate disability. Therefore, element three is established.

[39] Accordingly, the only live issue is the fourth element, that is, whether the psychiatric damage was caused, in fact and in law, by Dr. Haukioja's non-disclosure. In undertaking the causation analysis, I note the importance of keeping the issues of factual causation, often referred to as the "but for" test, and legal causation, often referred to as remoteness, distinct. As noted in A. Linden and Feldthusen, at 360, the failure to do so can be a source of much confusion:

Most of the difficulty in this area stems from an unfortunate blurring of two issues that should not be intermingled: (1) cause-in-fact, and (2) proximate cause or remoteness. If the cause-in-fact issue were kept separate from the proximate cause or remoteness issue, much of the confusion would vanish. . . . Although one cannot totally and completely divorce the two issues, it can be said that cause-in-fact is fundamentally a question of fact, which can be treated relatively expeditiously in most tort litigation. Proximate cause or remoteness, on the other hand, cannot be handled so simply, because it deals with the limits of liability for negligent conduct, which . . . demands delicate value judgments and the drawing of fine lines. It is more a question of law and policy than fact.

[40] Dr. Haukioja argues that while the evidence might establish Grant Frazer's reaction to Dr. Haukioja's non- disclosure, there was no evidence to support the proposition that "but for" this conduct the psychiatric illness would not have developed. [page539] That is, factual causation was not established. In the alternative, he argues that the psychiatric damages suffered by Mr. Frazer were too remote to be compensable. That is, legal causation was not established.

Factual causation ("but for")

[41] Factual causation can be established in two ways: the "but for" test and the "material contribution" test. Only one of these tests will apply in any given case. The differences between the two tests was recently clarified in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, at paras. 21-25:

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. . . . . .

However, in special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test. Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements.

First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.

[42] As I said, I agree with the appellant's submission that the trial judge erred in applying the material contribution test after he successfully reasoned his way through the "but for" test. The two requirements set out above in Resurfice for application of the material contribution test are not met in this case. Specifically, the difficulty of proving causation in cases of psychiatric harm does not always amount to impossibility. However, as I will explain, I am of the view that factual causation is made out on the "but for" test.

[43] Dr. Haukioja submits that the trial judge erred by finding that the non-disclosure was a "but for" cause of Mr. Frazer's psychiatric injury. In his factum, he argues that

Dr. Sadavoy never said Dr. Haukioja's conduct contributed to or caused the respondent's psychiatric illness. He said that the respondent's belief [page540] that he had been malevolently treated by Dr. Haukioja contributed to his illness, together with other factors, like his realization that he would never heal properly. There was no evidence to show that Dr. Haukioja's failure to appropriately treat the talus fracture caused [Mr. Frazer's] psychiatric illness.

[44] Although I agree with Dr. Haukioja that the non- disclosure and Mr. Frazer's reaction to it are distinct, I disagree with the above submission. I am satisfied that the trial judge did not commit an error in relying on Dr. Sadavoy's evidence to conclude that but for Dr. Huakioja's negligence, Mr. Frazer would not have suffered psychiatric harm.

[45] As the trial judge perceived it, the evidence of Dr. Sadavoy is vital in determining whether the "but for" test has been met. Dr. Sadavoy listed three causative factors behind Mr. Frazer's psychiatric injury: -- the difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja; -- Mr. Frazer's belief that he was "medically mistreated" and "deliberately harmed"; and -- Mr. Frazer's belief that he contributed to his own disability by walking on the ankle.

[46] The first cause identified by Dr. Sadavoy is the difference between the true severity of the talus fracture and Dr. Haukioja's representations. Dr. Haukioja failed to communicate with Mr. Frazer at all between December 6, 2001 and January 10, 2002, leaving Mr. Frazer with the understanding that there was no right-ankle fracture. On January 10, 2002, Dr. Haukioja communicated in an inadequate fashion, leaving Mr. Frazer with the understanding that the fracture was tiny, barely visible and minor. It was not until January 23, 2002 that another doctor advised Mr. Frazer of the true nature of his injury.

[47] The evidence clearly demonstrates that but for the non- disclosure, Grant Frazer would have known the true severity of his injury and this first factor would never have come into existence.

[48] The second cause named by Dr. Sadavoy is Mr. Frazer's belief that he was medically mistreated and deliberately harmed. Dr. Haukioja argues that there is a legal distinction between the non-disclosure and Mr. Frazer's interpretation of the non-disclosure. Moreover, as the trial judge found there was no evidence to support a finding that Dr. Haukioja deliberately exposed Mr. Frazer to harm, it was not open to the trial judge to [page541] find factual causation. I do not agree with this submission. Despite the trial judge's finding that Dr. Haukioja did not act deliberately, it is sufficient that Mr. Frazer would not have formed the belief that Dr. Haukioja was deliberately causing him harm if the non-disclosure had never happened. This is all that the "but for" test requires.

[49] The third cause identified by Dr. Sadavoy is Mr. Frazer's belief that he contributed to his own disability by walking on the ankle. Mr. Frazer would not have experienced extra pain from weight-bearing, and thus formed the belief that he had exacerbated his injury, if Dr. Haukioja had disclosed the existence of the fracture on December 6, 2001. This is sufficient to meet the "but for" test.

[50] The trial judge's acceptance of Dr. Sadavoy's evidence necessarily means that factual causation is made out on the "but for" test. The real issue in this case is whether legal causation has also been established. As I will explain, I hold that it has.

Legal causation (remoteness)

[51] Legal causation is informed by the general principle that the harm suffered must be of a kind, type or class that was reasonably foreseeable as a result of the defendant's negligence. This reasonable foreseeability test stems from Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engineering Co. (The Wagon Mound (No. 1)), [1961] A.C. 388 (P.C.), at pp. 422-23. This was expanded in Hughes v. Lord Advocate, [1963] A.C. 837, [1963] 1 All E.R. 705 (H.L.) and adopted by the Supreme Court of Canada in Ontario (Ministry of Highways) v. Côté, 1974 31 (SCC), [1976] 1 S.C.R. 595, [1974] S.C.J. No. 155, where Dickson J. explained [at p. 604 S.C.R.] that "[i]t is not necessary that one foresee the 'precise concatenation of events'; it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred".

[52] Although psychiatric damages traditionally engendered more controversy than physical ones, this same foreseeability framework has come to be applied. Canadian law has adopted the following statement from White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509, [1999] 2 A.C. 455 (H.L.), at p. 1512 W.L.R.: "The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals." Thus, in Mustapha, the Supreme Court found, at para. 16, that in order to establish a claim for psychiatric damages, a plaintiff must show that a person of reasonable fortitude would have suffered a mental [page542] injury. [See Note 2 below] This is consistent with the reference in Ontario (Ministry of Highways) v. Côté, cited above, to the need to show that the "class or character of injury which occurred" was foreseeable.

[53] Once the foreseeability of psychiatric damage in a person of reasonable fortitude is established, "the defendant must take the plaintiff as it finds him for purposes of damage" (Mustapha, para. 16). Thus, in the present case, it was not necessary that the respondent prove that it was reasonably foreseeable that a person of normal fortitude would have suffered anxiety disorder, depression and agoraphobia. Rather, once it was established that it was reasonably foreseeable that a person of reasonable fortitude would suffer some compensable mental injury, the appellant must take his plaintiff as he finds him.

[54] Dr. Haukioja relies heavily on the recent decision of Mustapha. The trial judge stated in his reasons that he distinguished Mustapha on the basis that Grant Frazer suffered an underlying physical injury. Although the trial judge claims to distinguish Mustapha, I do not read the balance of his reasons as "distinguishing" that case in the sense of refusing to apply the test it establishes. Rather, the framework set out in Mustapha led the trial judge to find that the legal causation test was met in this case, although it was not in Mustapha. I take this conclusion as stemming primarily from two differences in the facts of this case. First, unlike Mustapha, there is no evidence in this case that Mr. Frazer is anything but a person of ordinary mental fortitude. Second, the nature of the breach, when viewed in light of the relationship between Grant Frazer and Dr. Haukioja, renders psychiatric injury foreseeable.

[55] In Mustapha, there were clear factual findings that the plaintiff's reaction was abnormal and a product of his particular hypersensitivity. All of the medical evidence characterized Mr. Mustapha's reaction as unusual, strange and highly individualized. The lay witnesses were all agreed that he had an "unusually high concern over the health and well being of his family" and over the cleanliness of his home. This evidence was not refuted by the plaintiff. Indeed, in concluding that it was not reasonably foreseeable that a person of reasonable fortitude would suffer a mental injury from seeing a fly in a bottle of water, the Supreme Court notes that not even the plaintiff's expert witness had testified that it was: para. 18. [page543]

[56] There is no evidence that Mr. Frazer's injuries were the result of a similar hypersensitivity. To the contrary, in our case, all the evidence suggests that Grant Frazer had no particular sensitivities, emotional or otherwise. He was highly educated, employed in the vocation of his choosing, financially stable and physically active. He had a normal social life and was in a long-standing romantic relationship. The trial judge rejected -- correctly in my view -- the proposition put forward by Dr. Reznek that Mr. Frazer was an emotionally vulnerable person because his brother had committed suicide and his mother had at one point been diagnosed with cancer. Personal tragedy clearly does not equate with hypersensitivity as that term was used in Duwyn.

[57] Second, in Mustapha, the relationship was of a contractual, commercial nature. In this case, the relationship was between a professional and a client; Dr. Haukioja was in a position of trust and authority relative to Mr. Frazer. The nature of this relationship is, in my view, such that it should have fallen within Dr. Haukioja's contemplation that a breach of that trust as blatant as the one that occurred in this case could have severe ramifications for his patient's mental health. [See Note 3 below]

[58] In the present case, the trial judge found, at para. 227 of his reasons, that "[t]he psychiatric evidence establishes that the illness that Dr. Haukioja's conduct brought about in Grant was foreseeable even if the extent of his disability was not". I read this as the trial judge's following the test in Mustapha and finding that it was reasonably foreseeable that Dr. Haukioja's conduct would cause a mental injury in a person of reasonable fortitude, even if the precise nature and extent of Mr. Frazer's condition were not reasonably foreseeable. Thus, although the trial judge distinguished Mustapha on its facts, he actually applied the test established in that case, and did so correctly.

Conclusion

[59] Mere "general emotional upset" and compensable psychological injury fall along a spectrum that is difficult to navigate with any degree of precision: see Mustapha, paras. 8-9. The former is unquestionably foreseeable in this case. However, it seems to me that it was also foreseeable that Dr. Haukioja's non-disclosure [page544] could give rise to a recognized psychiatric illness. Dr. Haukioja was an experienced doctor and Grant Frazer was his patient.

[60] Although the specific mechanisms of psychological injury are still being discussed, the correlation between pain and anxiety cannot be said to be a revolutionary concept. I would also observe that if one were to consider this case against Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (Wagon Mound No. 2), [1966] 2 All E.R. 709, [1967] 1 A.C. 617 (P.C.), per Lord Reid, the cost of avoiding the damage was minimal relative to the probability of serious psychiatric damage. All Dr. Haukioja had to do was make a phone call to Mr. Frazer within a reasonable time after December 6, 2001.

[61] I would therefore dismiss these grounds of appeal. The trial judge analyzed and assessed the emotional and psychiatric effect of Dr. Haukioja's conduct on Mr. Frazer at the time that the nature of his professional failures became clear to Mr. Frazer -- when he learned of the extent of his physical injuries, including the range of possible outcomes. The trial judge's findings were fully supported by the evidence and correct in law. In rendering his decision, he committed no palpable and overriding error of fact or of mixed fact and law. There is no reason, in my opinion, to interfere with his decision.

Issue 3: Did the trial judge err in respect of damages?

[62] Dr. Haukioja argues that if he is unsuccessful on the first two issues, the damages awarded by the trial judge should be reduced. He advances two main omissions by the trial judge that he says amount to errors and argues that the amount awarded to Mr. Frazer for lost income ought to be reduced to account for these errors. First, he says that the trial judge failed to consider that the orthopaedic injuries suffered by Mr. Frazer as a result of his accident would themselves have resulted in him losing both past and future income, apart from the psychiatric injuries caused by Dr. Haukioja's negligence. Second, he says that the trial judge failed to make adequate deductions for other specific contingencies in respect of Mr. Frazer's future loss of income and past lost income. I reject both of these submissions.

(i) Consideration of accident-caused injuries

[63] Regarding past loss of income, the trial judge held that the evidence did not establish that complications from the injuries arising from the accident would have disabled Mr. Frazer and prevented him from working from the time he returned to work on January 14, 2002 up to the time of trial. However, he noted that Mr. Frazer's past income loss calculation understated his [page545] income loss to trial by about ten months. The trial judge concluded [at para. 269] "the missing months adequately compensate for any negative contingency the court might otherwise apply to reduce the past income loss award". And as to the future loss, at para. 271 of his reasons, the trial judge held that:

From an orthopedic standpoint, neither the individual nor combined physical injuries that Grant suffered in the motor cycle accident of 25 November 2001 are disabling. But for the psychiatric disorder that followed upon the accident and Grant's medical management by Dr. Haukioja, Grant would have been capable of returning to his pre-accident employment as a teacher at least by September 2002 and he would have continued to earn the income enjoyed by teachers in his pay grid (A4)[.]

[64] It is clear that the trial judge concluded that the evidence was not sufficient to justify adjusting for the contingency that Mr. Frazer's accident-related injuries would have disabled him from working as a teacher in the future. While it was certainly possible that he could have ongoing problems, the serious orthopedic consequences had all disappeared at the time of trial. Possible future complications in this regard did not mean he would be unable to work at his job as an elementary school teacher.

[65] The record demonstrates that the trial judge was entitled to make the findings that he did on these two areas of damages. Dr. Haukioja has failed to establish that any error was made.

(ii) Deduction for other specific contingencies

[66] The trial judge concluded that the possibility of the respondent returning to work was remote. He based his award of future loss of income on the assumption that the respondent would have worked as an elementary school teacher on a full- time basis until retirement at the age of 65, but he reduced the award for general contingencies relating to the probability of the respondent's survival and the probability of his continuing to work in the ordinary course.

[67] As a result, he reduced the future loss of income by approximately 22 per cent to account for these contingencies. This court has held that no adjustment for specific contingencies should be made in the absence of clear evidence, because to do otherwise would be mere speculation: see Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314 (C.A.), at p. 636 O.R. No such evidence can be found.

[68] The trial judge's approach to Mr. Frazer's future loss of income claim is correct since there was no clear evidence to do otherwise.

[69] In the result, I would dismiss this ground of appeal. [page546]

Issue 4: Did the trial judge err in awarding costs to the respondent?

[70] The trial judge awarded the respondents $929,168.76 in costs, disbursements and GST for the action, including the 20- day trial. In doing so, he found that rule 57.01(1)(0.b) "speaks of the expectations of the paying party, a subjective test". This, Mr. Haukioja argues, was an error of law.

[71] Dr. Haukioja's core argument is that the trial judge erred in describing rule 57.01(1)(0.b) as setting out a subjective test, when that rule actually refers to "the amount of costs that an unsuccessful party could reasonably expect to pay" which requires at least some objective analysis of the amount of costs that would be appropriate. Dr. Haukioja argued before the trial judge that Grant Frazer's counsel docketed almost twice as much time as his own. This, he says, is relevant to Dr. Haukioja's reasonable expectations and establishes that he could not reasonably have expected Mr. Frazer's counsel to have invested so much more time than his own.

[72] The answer to this argument is found in the submissions of Grant Frazer that were made to this court.

[73] In making his finding with respect to the application of that part of rule 57.07(1)(0.b), "the amount of costs that an unsuccessful party could reasonably expect to pay . . .", the trial judge noted Mr. Haukioja's failure to provide adequate information as to his own legal costs incurred. [See Note 4 below] He also agreed with the observations of Nordheimer J. in Hague v. Liberty Mutual Insurance Co., 2005 13782 (ON SC), [2005] O.J. No. 1660, [2005] O.T.C. 290 (S.C.J.), at para. 16, that "the failure to volunteer that information may undermine the strength of the unsuccessfully party's criticisms of the successful party's requested costs". In that regard, his decision is entirely consistent with the authorities, and in particular the dicta of the Divisional Court in Andersen, "the inference must be that the [unsuccessful] defendants devoted as much or more time and money" as did the successful plaintiffs: Andersen v. St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508, 264 D.L.R. (4th) 557 (S.C.J.), at paras. 24-27. [page547]

[74] The trial judge correctly noted that his exercise of discretion is an attempt to do procedural and substantive justice between the parties. His discretion to award costs is provided by s. 131(1) of the Courts of Justice Act and is informed by rule 57.01. In this regard, I would simply restate some well-established principles that will guide a reviewing court, and which I applied in dismissing this ground of appeal.

[75] A trial judge has extremely broad discretion in the awarding of costs, which is entitled to a very high degree of deference and will not to be taken lightly by reviewing courts. A reviewing court can only review a trial judge's award of costs where he or she has considered irrelevant factors, failed to consider relevant factors or reached an unreasonable conclusion. And finally, a reviewing court will not interfere with a trial judge's disposition on costs on the grounds that the members of the appellate court would have exercised their discretion differently: Canadian Pacific v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, at para. 39.

[76] The trial judge, in my opinion, awarded costs under s. 131(1) of the Courts of Justice Act and rule 57.01, all in a proper exercise of his discretion. There is an onus on an appellant to prove that a trial judge has erred in the exercise of such discretion; Dr. Haukioja has failed to establish any error.

Disposition

[77] For all of these reasons, I would dismiss the appeal in all respects. I would award the respondents their costs in the aggregate amount of $30,000, inclusive of disbursements and GST.

Appeal dimissed.

Notes

Note 1: See Mustapha v. Culligan of Canada Ltd. (2006), 2006 41807 (ON CA), 84 O.R. (3d) 457, [2006] O.J. No. 4964 (C.A.), at para 21, for an overview of the historical jurisprudence.

Note 2: I take the Supreme Court's reference to "mental injury" in Mustapha to be the equivalent of this court's reference to "recognizable psychiatric illness" in Vanek.

Note 3: It is interesting to note that mental distress arising from a solicitor-client relationship has given rise to liability in contract. In Heywood v. Wellers, [1976] Q.B. 446 (C.A.), the solicitor failed to take out a restraining order and the plaintiff was molested as a result. The nature of the retainer was such that mental distress was foreseeable.

Note 4: Although the appellent provided information about the hours docketed by his counsel, he did not provide a bill of costs setting out hourly rates, nor did he disclose the fees actually charged by his counsel nor any information he had been given about what he might reasonably expect to pay.