Vincent R. K. Orchard

The appellant, an infant who suffered severe brain damage during a mid-level forceps delivery, appealed from the Court of Appeal's reversal of the trial judge's finding of liability against the respondent obstetrician.

The trial judge found the respondent breached the standard of care by failing to have surgical back-up immediately available before attempting the forceps procedure and by failing to obtain the mother's informed consent.

The Supreme Court of Canada restored the trial judgment, holding the trial judge committed no palpable and overriding error in finding causation on the "but for" test.

The matter was remitted to the Court of Appeal on the damages issue.

The appellant suffered back injuries in two successive motor vehicle accidents.

While recovering, he experienced a disc herniation during a mild stretching exercise.

The trial judge found the accidents contributed 25% to the herniation and awarded 25% of the global damages, which the Court of Appeal upheld.

The Supreme Court of Canada allowed the appeal, holding that apportionment between tortious and non-tortious causes is contrary to tort principles.

Because the accidents materially contributed to the indivisible injury, the defendants were fully liable for the entire loss under the thin skull rule.