COURT OF APPEAL FOR ONTARIO
CITATION: Beldycki Estate v. Jaipargas, 2012 ONCA 537
DATE: 20120810
DOCKET: C53118
Sharpe, Armstrong and Watt JJ.A.
BETWEEN
The Estate of Adam Beldycki, by Estate Trustees Mariusz Beldycki and Evelina Beldycki, Zdzislaw Beldycki, Jadwiga Beldycki, Mariusz Beldycki and Evelina Beldycki
Plaintiffs (Respondents)
and
Dr. Charles Jaipargas, Dr. Donald Munnings, Dr. Claire Coire, Dr. Michael King, Dr. William Magnuson and Trillium Health Centre, Mississauga Site
Defendants (Appellant)
Kirk F. Stevens and Jennifer L. Hunter, for the appellant
Duncan N. Embury and Daniela M. Pacheco, for the respondents
Heard: February 6, 2012
On appeal from the judgment of Justice E. Eva Frank of the Superior Court of Justice, sitting with a jury, on December 10, 2010.
Watt J.A.:
[1] A surgeon removed a cancerous tumour from Adam Beldycki’s colon. A few days later, Dr. William Magnuson, a radiologist, reviewed a CT scan of Adam Beldycki’s abdomen to determine whether the cancer had metastasized. Dr. Magnuson reported that the CT scan was normal. As a result, no post-operative treatment was scheduled.
[2] Dr. Magnuson (the appellant) was wrong. He missed a visible lesion, 2 cm in diameter, in Adam Beldycki’s liver.
[3] The jury found the appellant negligent for failing to see the lesion in Adam Beldycki’s liver. It further found that the appellant’s negligence caused or contributed to Adam Beldycki not being disease-free when the case was tried and awarded him substantial damages.
[4] The appellant does not challenge the jury’s finding that he was negligent in failing to see the lesion in Adam Beldycki’s liver. He does contend, however, that the jury was wrong in finding that his negligence caused the damages claimed, and in failing to reduce the award for future loss of income by taking into account certain contingencies.
[5] These reasons explain why I would dismiss Dr. Magnuson’s appeal and affirm the jury’s verdict.
The background facts
[6] The grounds of appeal advanced in his case require some reference to various features of the evidence adduced at trial.
The Principals
[7] In 2004, Adam Beldycki was a 29-year old pilot with Georgian Airways. He wanted to become a pilot with Air Canada, like his brother, and had applied for a position with the airline. He passed away on April 10, 2011. His estate and estate trustees are the respondents to this appeal.
[8] Dr. William Magnuson was a general radiologist at the Mississauga site of the Trillium Health Centre.
The Diagnosis and Surgery
[9] In the fall of 2004, a biopsy disclosed a cancerous tumour in Adam Beldycki’s sigmoid colon. A surgeon removed the tumour and resected several contiguous lymph nodes. The surgeon considered the cancer localized and completely excised by the surgery. Nonetheless, he arranged for a CT scan to ensure that the cancer hadn’t spread.
The Post-Operative Period
[10] Within days of the surgery, the appellant reviewed the CT scan of Adam Beldycki’s abdomen. He saw nothing to indicate that the cancerous growth in Adam’s colon had metastasized. He reported the CT scan as normal.
[11] Adam Beldycki was referred to an oncologist for any essential post-operative treatment, such as chemotherapy. The oncologist reviewed the radiological and other reports and concluded that no post-operative treatment was required because the cancer had not metastasized.
[12] Adam Beldycki returned to work as a pilot for Georgian Airways. He continued to pursue employment prospects at Air Canada.
The Employment Medical
[13] In early 2006, Adam Beldycki underwent some medical testing as part of his continued pursuit of employment as a pilot with Air Canada. Blood tests revealed elevated liver enzymes. A liver ultrasound disclosed several liver lesions. A CT scan and biopsy followed.
[14] Adam Beldycki had stage four colon cancer. His oncologist told him that without treatment, he had four to six months to live. With treatment, he could expect to survive for about 20 months. The proposed treatments, however, would be palliative, not curative.
The Treatment
[15] Doctors embarked on an aggressive form of chemotherapy in an attempt to shrink the colon cancer tumours in Adam Beldycki’s liver. However, Adam could not tolerate this aggressive chemotherapy and a less effective combination of drugs was administered instead.
[16] A surgeon removed the entire right lobe of Adam Beldycki’s liver, but could not resect at least two lesions in the left lobe. Radiofrequency ablation followed. The disease returned. Colon cancer found in lymph nodes resected near the liver came from the colon, not the liver. At trial, the malignancy had spread into Adam’s lungs.
The Subsequent Events
[17] On December 10, 2010, the jury returned its verdict. Four months later, on April 10, 2011, Adam Beldycki died.
the grounds of appeal
[18] The appellant does not challenge the jury’s finding that he was negligent when he failed to see or identify the 2.2 cm lesion on the right lobe of Adam Beldycki’s liver when he reviewed the CT scan in December 2004.
[19] Instead he advances three grounds of appeal that I would paraphrase in these terms:
i. the jury’s finding on causation is unreasonable and not supportable on the evidence adduced at trial;
ii. that a miscarriage of justice occurred because of non-direction and misdirection in the charge to the jury on the difference between survival and cure rates, the evidence of Adam Beldycki’s expert on causation, and the absence of evidence to support a finding of future loss of income; and
iii. that the jury’s failure to reduce the award for future loss of income to reflect the possibility that Adam Beldycki would not have been cured had the appellant detected the liver lesion in December 2004 was unreasonable.
Ground #1: Unreasonable Finding on Causation
[20] The first ground of appeal characterizes the jury’s finding that there was a causal nexus between the appellant’s negligence and Adam Beldycki’s damages as unreasonable.
[21] In this case, the causation issue reduces to whether, absent the appellant’s negligence, Adam Beldycki had a greater than 50 per cent chance of a cure, in other words, a greater than 50 per cent chance of surviving for five years without cancer recurrence.
The Expert Evidence
[22] The oncology experts who testified at trial on the issue of causation agreed on the meaning to be assigned to the terms “survival rate” and “cure rate” in cancer treatment.
[23] The term “survival rate” refers to a patient who has survived for five years after completion of cancer treatment. The period of survival may include a time during which the patient continued to suffer from, or suffered a recurrence of, the same or another form of cancer.
[24] The phrase “cure rate” refers to a period of five years after treatment during which the patient is free of cancer. A patient is “cured” if she or he survives without cancer for at least five years from the conclusion of prior treatment.
[25] Dr. Yoo-Joung Ko, qualified as an expert in medical oncology specializing in gastrointestinal cancers, more specifically in colorectal and metastatic colorectal cancer, testified on behalf of Adam Beldycki.
[26] Dr. Ko gave evidence that in the decade or more before Adam Beldycki’s diagnosis, significant developments had occurred in the treatment of colon cancer. Previously, treatment for colon cancer that had metastasized into the liver was palliative not curative. With these new developments, the focus had shifted to curative treatment.
[27] Dr. Ko testified that, absent the appellant’s negligence in failing to detect the liver lesion in December 2004, Adam Beldycki would have received post-operative treatment in late 2004 or early 2005. The post-operative treatment would have included liver resection to remove the 2.2 cm lesion in the liver that Dr. Magnuson missed, and chemotherapy to take care of any remaining lesions that were too small to be visible on the CT scan.
[28] Dr. Ko based his conclusion that Adam Beldycki would have had a better than 50 per cent chance of being cured absent Dr. Magnuson’s negligence on several factors. These included the relevant medical literature, his own practice and experience, and Adam Beldycki’s circumstances, including his young age.
[29] It is common ground that Dr. Ko was mistaken when he described a study by Dr. Abdalla in Houston as supporting a “cure rate” as high as 72 or 73 per cent. The study referred to a “survival rate”, not a “cure rate”
[30] Dr. Mark Vincent gave expert evidence on behalf of the appellant. Dr. Vincent is an oncologist whose practice is equally divided between patients he treats for colorectal cancers and those he treats for lung cancers.
[31] Dr. Vincent testified that even with surgical resection of the missed liver lesion in December 2004, or early the following year, Adam Beldycki’s chance of being cured of cancer was only around 30 per cent. Inclusion of chemotherapy in the treatment would not have significantly improved the likelihood of cure.
[32] Dr. Vincent explained that by examining the growth of the undetected liver lesion between 2004 and 2006, he could determine the average doubling time of the other liver lesions found in 2006, and extrapolate backwards to determine when those lesions first existed in the liver. He concluded that Adam Beldycki had more than a single liver lesion in 2004, something that might have been apparent to an operating surgeon but would not necessarily have been visible on a CT scan. Further, the distribution of lesions in the liver made it more likely that those lesions originated in the colon, as opposed to the liver.
[33] Dr. Vincent acknowledged that the growth rate of lesions varies among patients as well as within individuals. The age of a patient, thus of study groups reflected in the literature, is important. Also significant is whether the disease has spread elsewhere at the time of surgery and whether contiguous lymph nodes were positive or negative for cancer. At the time of surgery in December 2004, Adam Beldycki’s lymph nodes were negative.
[34] Dr. Ko explained that medical oncologists in clinical practice do not use the doubling time principle employed by Dr. Vincent when they provide a prognosis to a cancer patient. The principle, Dr. Ko said, has not been tested or validated in a prospective study.
The Charge to the Jury on Causation
[35] The trial judge provided counsel with a copy of her proposed charge. Without objection, she instructed the jury on causation in these terms:
Putting it in another way, the plaintiffs must satisfy you … with respect to Dr. Magnuson, that diagnosis in December 2004 of the metastatic liver disease would have resulted in Mr. Beldycki being cured of cancer.
If you find that “but for” Dr. Magnuson’s conduct, the probability is that Mr. Beldycki would have had a greater than 50 per cent chance of being cured of his cancer, then you must find that Dr. Magnuson caused Mr. Beldycki’s damages and is liable for them.
As I have said, you do not need to be satisfied that there was causation on the basis of scientific precision. Causation is essentially a practical question of fact that can best be answered by the application of ordinary common sense to the evidence.
I remind you that what the plaintiffs must establish is that there is a probability that Mr. Beldycki would have had a greater than 50 per cent chance of being cured of his cancer had he received chemotherapy following his surgery in 2004. A guess that this would have been the outcome does not meet the burden. It is for you to decide, based on all of his evidence including evidence-in-chief that Mr. Beldycki had a better than 50 per cent chance of being cured, whether Dr. Ko’s evidence provides sufficient proof to meet the burden, in spite of his having referred to that opinion as his best guess.
The Arguments on Appeal
[36] For the appellant, Mr. Stevens does not dispute that Adam Beldycki was deprived of a chance of cure for his colon cancer when Dr. Magnuson missed the liver lesion on his review of the CT scan in December, 2004. But to establish the necessary causal link between the failure to detect and the proliferation of the cancer, Adam Beldycki had to show that it was more probable than not that with timely treatment he would have been cured. In other words, he had to show that he would have been free of cancer five years after his last treatment. The evidence, Mr. Stevens says, is incapable of sustaining this conclusion.
[37] Mr. Stevens submits that the only witness upon whose evidence Adam Beldycki relied was Dr. Ko. And Dr. Ko’s opinion was seriously flawed. Dr. Ko misstated the effect of the Abdalla study, to which no reference was made or reliance placed in his report. He mischaracterized as a “cure rate” what Dr. Abdalla had reported as a “survival rate”, an error that was not clarified in the charge to the jury. In his own terms, Dr. Ko’s opinion was a “guess” or an “estimate”. It was therefore inadequate to establish causation.
[38] For the respondents, Mr. Embury begins with a reminder about the significant burden imposed on an appellant who seeks to overturn the verdict of a civil jury as unreasonable. The appellant must demonstrate that no jury, viewing the evidence on the issue as a whole and acting judicially, could have reached the conclusion these jurors did. Mr. Embury says that the jury’s finding was open to them on the evidence adduced at trial, especially the testimony of Dr. Ko.
[39] Mr. Embury points out that causation, like other factual findings, falls to be decided on the whole of the evidence adduced at trial. The issue was properly left to the jury without any need for express instruction on the difference between cure and survival rates, a subject thoroughly canvassed by counsel at trial and properly stated in the questions submitted to the jury for answer. Trial counsel for the appellant did not object to the charge on causation or to the omission of the distinction now said to have been crucial.
The Governing Principles
[40] The parties do not differ significantly on the principles that govern the issue raised. However, they part company on the result the application of those principles should yield in this case.
[41] First, an appellant who challenges a civil jury verdict on the ground that the verdict is unreasonable is required to show that no jury, viewing the evidence as a whole and acting judicially, could have reached such a conclusion: McCannell v. McLean, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343; Bovingdon (Litigation Guardian of) v. Hergott (2008), 2008 ONCA 2, 88 O.R. (3d) 641 (C.A.), at para. 22. In construing the jury’s findings, we must not apply an overly rigorous, critical method. If, on a fair interpretation, the findings can be supported on a reasonable view of the evidence adduced at trial, we should give effect to those findings: McCannell, at p. 343; CNR v. Miller, 1933 CanLII 372 (SCC), [1934] 1 D.L.R. 768 (S.C.C.), at p. 769.
[42] Further, in a civil case, a new trial will only be ordered where the interests of justice plainly require it: see Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9. A reviewing court will not direct a new trial unless there has been a “substantial wrong or miscarriage of justice”: see Courts of Justice Act, R.S.O. 1990, c. C-43, s. 134(6).
[43] Second, although a failure by counsel to object to a charge to the jury in a civil case is not dispositive on appeal, such a failure tells heavily against a request for a new trial based on alleged flaws in the charge: Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56, at para. 32; Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 66; and Mizzi v. Hopkins (2003), 2003 CanLII 52145 (ON CA), 64 O.R. (3d) 365 (C.A.), at para. 50.
[44] Third, in an action for delayed medical diagnosis and treatment, a plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. A plaintiff who fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, will fail to establish his or her claim. It is not enough for a plaintiff to prove that adequate diagnosis and treatment would have afforded the plaintiff a chance of avoiding the unfavourable outcome unless the chance surpasses the threshold of “more likely than not”: Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), at para. 25; see also Laferrière v. Lawson, 1991 CanLII 87 (SCC), [1991] 1 S.C.R. 541.
[45] Causation need not be determined with scientific precision, rather it is essentially a practical question of fact best answered by ordinary common sense. Medical experts ordinarily determine causation in terms of certainties. The law demands a lesser standard: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at paras. 29, 30 and 34.
The Principles Applied
[46] For several reasons I would not give effect to this ground of appeal.
[47] First, as the appellant frankly acknowledges, the standard he must satisfy to succeed on this ground is extremely onerous. In essence, we must be able to conclude that, in making their finding on this issue, the jury failed to perform the judicial duty assigned to it by the trial judge. By this standard, the appellant comes up short.
[48] Second, the evidence of Dr. Ko was that had the appellant detected the liver lesion in December 2004, Adam Beldycki would have had a surgical resection of the tumour in his liver and, post-operatively, chemotherapy that could reasonably be expected to have treated any other lesions too small to be visible on a CT scan. According to Dr. Ko’s review of the literature and his clinical experience, as a young man in otherwise good health, Adam Beldycki’s chance of a cure exceeded 50 per cent. The jury were entitled to rely on this evidence in deciding the issue of causation. How much the probability of cure exceeded the threshold required was of no moment - only that it did: fifty-one per cent was just as good as 73 per cent.
[49] Third, the jury were properly instructed on causation and Adam Beldycki’s obligation to prove that “but for” the negligence of the appellant, he would be “disease free today”.
[50] Fourth, causation was a finding of fact for the jury to make on all the evidence adduced at trial, including, but not only, the testimony of Dr. Ko. Causation need not be determined with scientific precision. Nor does the issue turn on the use of a particular word formula by the qualified expert. Substance counts, not form.
[51] Finally, trial counsel for the appellant did not object to the charge on causation on the basis of any of the errors or omissions alleged here.
Ground #2: Miscarriage of Justice
[52] The second ground of appeal also relates to Dr. Ko’s misstatement of the results of the Abdalla study and the trial judge’s failure to expressly instruct the jury about the differences between survival and cure rates.
[53] It is common ground that Dr. Ko misspoke when he characterized the Abdalla study as concluding that the “cure rate” following hepatic resection of solitary colorectal liver metastasis was 72 or 73 per cent at five years. The parties agree and the fresh evidence[^1] confirms that the study refers to a “survival rate” not a “cure rate”.
The Charge to the Jury
[54] The causation question formulated for the jury’s decision asked whether Dr. Magnuson’s failure to meet the standard of care caused or contributed to Adam Beldycki “not being disease free today”.
[55] In her charge, the trial judge repeated Dr. Ko’s misstatement of the conclusion of the Abdalla study. She did not expressly point out the distinction between “survival rate” and “cure rate” or that the causation question involved the latter, not the former.
[56] At the outset of her discussion of the causation issue in connection with Dr. Magnuson,[^2] the trial judge said:
This instruction with respect to causation applies equally to the claim against Dr. Magnuson. If you find that “but for” Dr. Magnuson’s conduct, the probability is that Mr. Beldycki would have had a greater than 50 per cent chance of being cured of his cancer, then you must find that Dr. Magnuson caused Mr. Beldycki’s damages and is liable for them.
She then described causation as “a practical question of fact that can best be answered by the application of ordinary common sense to the evidence.”
[57] Towards the end of her evidentiary references on causation in connection with Dr. Magnuson, the trial judge said:
Dr. Ko testified that his opinion that had Mr. Beldycki received treatment for Stage 4 cancer rather than Stage 1 cancer in 2004, Mr. Beldycki would be disease free, is just a guess based on patients similar to Mr. Beldycki in the literature and in Dr. Ko’s practice. I remind you that what the plaintiffs must establish is that there is a probability that Mr. Beldycki would have had a greater than 50 per cent chance of being cured of his cancer had he received chemotherapy following his surgery in 2004. A guess that this would have been the outcome does not meet the burden. It is for you to decide, based on all of his evidence including evidence-in-chief that Mr. Beldycki had a better than 50 per cent chance of being cured, whether Dr. Ko’s evidence provides sufficient proof to meet the burden, in spite of his having referred to that opinion as his best guest.
The Positions of the Parties
[58] For the appellant, Mr. Stevens acknowledges that, in civil cases, a new trial should not be ordered unless the interests of justice plainly require it. He submits, however, that in this case the cumulative effect of the trial judge’s errors and the jury’s response thereto caused a miscarriage of justice. He relies on:
• The trial judge’s repetition of Dr. Ko’s mischaracterization of the conclusions of the Abdalla study;
• Her failure to expressly distinguish between the “survival rate” and “cure rate” and to instruct the jury that only the “cure rate” was of importance on the issue of causation; and
• The jury’s failure to appreciate the distinction between the two, as evidenced by its failure to reduce the award for future loss.
The only appropriate remedy, he submits, is a new trial.
[59] For the respondents, Mr. Embury says that the appellant has failed to meet the stringent standard required to justify a new trial in a civil jury trial. He says that the real issue to be determined is whether any errors in the judge’s charge deprived the appellant of the right to a fair trial in the circumstances of this case. The causation issue, the evidence relied upon by the parties on the issue, and the differences between survival and cure rates were fully explored in the testimony, the addresses of counsel, and in the charge. The causation question referred to “cure”, not “survival”. Counsel did not object to the charge on causation.
The Governing Principles
[60] The applicable principles have already been canvassed in connection with the first ground of appeal. Nothing will be gained by the repetition.
The Principles Applied
[61] This ground of appeal fails.
[62] The causation issue was fully explored at trial. The principal witnesses, Dr. Ko and Dr. Vincent, distinguished between cure and survival rates. The causation question referred to Adam Beldycki being “cancer free today”. The conflicting evidence on causation was a principal focus of closing arguments. The instructions on causation attracted no objection from trial counsel for the appellant. Finally, the jury’s finding on future loss, discussed below, does not reflect any lack of appreciation of the distinction between cure and survival rates.
Ground #3: Deduction for Future Contingencies
[63] The final ground of appeal relates exclusively to the jury’s award for future income loss. The appellant seeks a reduction in the award on the basis that the jury failed to take into account future adverse contingencies.
[64] Brief reference to some of the evidence adduced at trial and to the trial judge’s charge will provide a suitable setting for the discussion that follows.
The Evidence About Future Income Loss
[65] The parties each called experts to quantify Adam Beldycki’s past and future economic losses. Neither expert’s future income loss calculations included consideration of negative or positive contingencies. The appellant’s expert explained that, as was his practice absent compelling reasons not to do so, he assumed positive and negative contingencies would offset each other.
[66] Dr. Eli Katz, an economist who testified on behalf of Adam Beldycki, concluded that his future income loss, including his claim for lost years discounted by 50 per cent for living expenses, ranged from $1,024,450 to $1,477,366.
The Charge to the Jury
[67] In her charge to the jury on “Future Loss of Income and Lost Years of Earnings”, the trial judge explained Adam Beldycki’s burden of proof in these terms:
The onus, or burden of proof, rests on the plaintiff to prove the loss of future income, but it is not a loss that must be proven precisely, that is, in an exact dollar and cent figure. And the burden of proof is lower for a plaintiff with respect to a claim for future loss of earnings. With respect to this claim, Mr. Beldycki need only satisfy you on the evidence that there is a real and substantial possibility that he has lost a chance of earning income in the future, to be entitled to damage for this. Of course, the possibility cannot be based on speculation alone.
If a plaintiff establishes a real and substantial possibility of a future loss, then he is entitled to compensation based on the percentage of possibility that you find that the future loss will. Compensation for future losses is not an all or nothing proposition. The greater the probability of loss, the greater will be the compensation. You will recall that the highest end of the range that Dr. Ko testified applied to Mr. Beldycki’s chances of being cured was 70, or perhaps, 73 per cent. If you accept that percentage, you will have to reduce Mr. Beldycki’s future loss of earnings from the date of his death by around 30 per cent.[^3]
[68] The trial judge returned to the subject of contingencies later in her charge:
In deciding how much Mr. Beldycki would have earned from the date of the commencement of the trial forward, you must consider contingencies, those things that might happen in the future and would have an effect, either positive or negative, on his earnings.
Some contingencies apply generally to people in the work force potentially adversely affecting their earnings. These include future illness or accidents that might impair earning ability, general economic downturn, strikes, jobs lost through dismissal or changes at the employer resulting in lay-off or the failure of the employer. All of these things reduce earning capacity.
To summarize then, when you consider Mr. Beldycki’s claims for loss of future income and lost years of earnings, before you do any calculations you will have to decide:
What is Mr. Beldycki’s life expectations?
Would Mr. Beldycki have had an extended life expectancy because he would have been cured, if he had been diagnosed and treated following his seeing Dr. Jaipargas in September 2003 or if the liver lesion had been noted by Dr. Magnuson in December 2004?
If Mr. Beldycki had been cured, what would his salary have been, when would he have retired and what is the effect of contingencies on his earnings?
The Arguments on Appeal
[69] For the appellant, Mr. Stevens takes no objection to the correctness or completeness of the trial judge’s instructions on the impact of contingencies on Adam Beldycki’s claim for future income loss. He submits, however, that the jury’s award of $1,250,000 on this claim is the unreasonable result of its failure to follow the trial judge’s instructions. The award should be discounted by 30 percent to $1,034,156.20 to reflect the fact that Adam Beldycki had a 30 percent chance of not surviving even if the lesion had been detected.
[70] For the respondents, Mr. Embury says that once the jury found that the appellant caused the loss, Adam Beldycki was entitled to full compensation for his loss without deduction for negative contingencies. Once proven, causation is established as a legal certainty. Future events are, by nature, hypothetical and incapable of proof to any level of certainty, thus not subject to deduction for negative contingencies.
The Governing Principles
[71] To determine the validity of appellant’s assertion of the unreasonableness of the jury’s award for future income loss, it is helpful to examine the role or relevance of contingencies in claims for future income loss.
[72] Courts deal with alleged past events and potential future or hypothetical events in different ways.
[73] Past events must be proven on the evidence adduced at trial by the party who bears the onus of proof. Once proven to the applicable standard of proof, we treat those past events as certainties: Athey, at para. 28. In an action for negligence, the court must decide whether the defendant was negligent and whether the defendant’s negligence caused the plaintiff’s injury. Once proven, negligence and causation are accepted as certainties: Athey, at para. 28.
[74] On the other hand, hypothetical or future events, such as how the plaintiff’s life would have proceeded without the failed diagnosis, need not be proven, but simply accorded weight on the basis of their relative likelihood. A future or hypothetical possibility will be taken into account provided it is a real and substantial possibility and not mere speculation: Athey, at paras. 27 and 41.
[75] A trier of fact required to assess future pecuniary loss becomes engaged in an exercise that is, perforce, somewhat speculative. The ultimate questions to be decided cannot be proved or disproved in the same way as facts relating to past events. A plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities a loss or diminution of future earning capacity or a requirement of future care because of a defendant’s wrong. A plaintiff who establishes a real and substantial risk of future pecuniary loss is entitled to compensation: Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 634.
[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.
[77] A contingency is a chance occurrence, something that is dependent on an uncertain event. We refer to factors that affect the degree of risk of future economic loss and the possibility that all or part of these losses may have occurred apart from the tortious conduct that underpins the litigation as contingencies: Graham, at p. 635.
[78] As a general rule, we take account of contingencies that might affect future earnings. This is so despite the fact that these contingencies are already implicitly contained in an assessment of the projected average level of earnings of the person wronged. Not all contingencies are adverse. And some public and private schemes cushion individuals against adverse contingencies. The percentage deduction is generally small: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at p. 253.
[79] Contingencies may be general or specific. General contingencies represent the common lot of all of us. Adjustments based on general contingencies should only be modest: Graham, at p. 636. Specific contingencies are peculiar to an individual plaintiff and require evidentiary support for the conclusion that the occurrence of the contingency is a realistic, not merely a speculative possibility: Graham, at p. 636; and Schurrip v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.), at p. 343.
The Principles Applied
[80] I would give no effect to this ground of appeal for four reasons.
[81] First, the appellant challenges the jury’s award on future income loss as unreasonable. Thus the appellant must demonstrate that the quantum of damages awarded under this head was one that no trier of fact, considering the evidence as a whole and acting judicially, could reasonably have rendered. The assessment of damages is in the peculiar province of the jury. The court will only interfere with a jury’s award for damages where it is so grossly out of proportion to the negligence as to shock the court's conscience and sense of justice: Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 159 citing Walker v. CFTO Ltd. (1987), 1987 CanLII 126 (ON CA), 59 O.R. (2d) 104 (C.A.), at p. 110.
[82] The appellant rightly acknowledges the stringent standard he must meet to have this portion of the award set aside and substituted with the amount he says is appropriate. Like many before him, and doubtless many in the future, he fails. Quite simply put, this award is not unreasonable.
[83] Second, it is a reasonable inference that the jury took into account adverse contingencies in reaching their conclusions on future income loss as the trial judge instructed them to do. Their award is about 15 per cent less than the upper limit of the range for future income loss described by Dr. Katz. That the reduction does not coincide with what the appellant contends is appropriate does not make the jury’s conclusion unreasonable.
[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, 1992 CanLII 12876 (MB CA), [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.
[85] Fourth, the appellant advances this position for the first time on appeal. Trial counsel failed to raise the issue before the trial judge notwithstanding ample opportunity to do so.
CONCLUSION
[86] For these reasons, I would dismiss the appeal. The respondents are entitled to their costs that I would fix at $58,000 inclusive of disbursements and all applicable taxes.
“David Watt J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Robert P. Armstrong J.A.”
Released: “R.P.A.” August 10, 2012
[^1]: The appellant brought, and the panel allowed, a motion to adduce the fresh evidence of the Abdalla study for the purpose of demonstrating this misstatement.
[^2]: At trial an action for negligence was also brought against another doctor. There was no finding of negligence against that doctor and no appeal has been taken from that decision.
[^3]: Though nothing turns on it, the last two sentences of this excerpt are erroneous for the same reasons set out at para. 85. The discount, if any, on compensation for future loss of earnings is not based on the degree to which causation has been established. Causation once proven is a certainty.