St-Jean v. Mercier

St-Jean v. Mercier
Collection
Supreme Court Judgments
Date
2002-02-21
Neutral citation
2002 SCC 15
Report
[2002] 1 SCR 491
Case number
27515
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Appeal
Torts
Notes
SCC Case Information: 27515
Decision Content
St‑Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15
Frédéric St‑Jean Appellant
v.
Denis Mercier Respondent
Indexed as: St‑Jean v. Mercier
Neutral citation: 2002 SCC 15.
File No.: 27515.
2001: April 18; 2002: February 21.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Civil responsibility – Physicians and surgeons – Duty of prudence and diligence – Victim of car accident bringing action in civil responsibility arising out of treatment of his injuries by orthopaedic surgeon – Trial judge finding surgeon to be without fault and ruling that causation had not been established – Whether Court of Appeal justified in intervening in trial judge’s decision – Whether presumption of causation applies.
Appeals – Standard of review – Victim of car accident bringing action in civil responsibility arising out of treatment of his injuries by orthopaedic surgeon – Trial judge finding surgeon to be without fault and ruling that causation had not been established – Whether Court of Appeal justified in intervening in trial judge’s decision – Whether Supreme Court of Canada has reason to intervene in Court of Appeal’s decision.
The appellant was hit by an automobile and was transported by ambulance to a hospital. He had open fractures in both legs and was bleeding from the head. The appellant was examined by the respondent, an orthopaedic surgeon, later that evening. The respondent was aware of a suspected fracture at the T7 vertebra, but he nonetheless concluded that the fracture was stable or that it was actually only a benign anomaly, thus not impeding his ability to operate. The operation was extremely urgent as it was necessary to treat the open wounds in the legs. Two days later, the respondent decided that the appellant’s condition had sufficiently improved to allow another operation on the leg, which was carried out the next day. That evening, a nurse entered a note that the appellant was unable to move his legs or toes, a condition the respondent attributed to sciatica. A week later, a third operation was carried out. During a visit to the out‑patient clinic after the appellant was discharged from the hospital, the respondent witnessed spasms in the appellant’s right leg, a symptom of spastic paraplegia. He consulted a neurologist, who confirmed a condition of spastic paraplegia arising from a medullary contusion. No x‑ray of the back was taken. Subsequent x‑rays and a myelogram revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of 9 millimetres in relation to T9. A more detailed review of the x‑rays taken following the accident revealed that the fracture was visible but that the subluxation was only 3 millimetres. The respondent proposed surgery to decompress the spinal cord, but the appellant asked to be transferred to another hospital, where the treating neurosurgeon decided not to operate. The appellant was diagnosed with paraparesis, a type of paralysis where the motor activity of the lower limbs is undermined but sensitivity is still retained.
The appellant’s action against the respondent went to trial. After the case had been heard and while the trial judge was deliberating, he fell ill and so the case was transferred to another judge, to be decided on the basis of the evidence entered at trial. The new trial judge found the respondent to be without fault, concluding that he could not be reproached for not having diagnosed a medullary contusion rather than a sciatic condition. He also found that the appellant had not discharged his burden to show causation. The Court of Appeal found that the respondent had committed a fault, but affirmed the trial judge’s ruling that causation had not been established.
Held: The appeal should be dismissed.
The inquiry to be made in this case is the traditional one: was the Court of Appeal correct in intervening in the trial judge’s decision because there was an error of law, an error of mixed law and fact, or an overriding and palpable error of fact? The Court of Appeal concluded that the trial judge made a mistake in the analysis of fault by asking the wrong question in determining whether a fault had been committed. The correct inquiry to be made in assessing whether a professional committed a fault is to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances. To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focussing on the result rather than the means. Here, the Court of Appeal was concerned that a proper inquiry was not made and the wrong standard of fault was applied by the trial judge. This concern entitled the Court of Appeal to intervene.
The Court of Appeal also faulted the trial judge’s decision for not taking a position on the scientific debate as to causation. A trial judge must assess whether the evidence supports, on a balance of probabilities, a finding of causation. It is not enough to say that there are opposing medical theories on causation and that it is not up to the court to decide between them. It was thus open to the Court of Appeal to be concerned that the trial judge had erred in this manner and accordingly undertake its own analysis of causation.
Findings of fault in the law of delict are questions of mixed law and fact, and the standard of review in this instance is one of correctness. Here, this Court is justified in modifying certain findings of fault made by the Court of Appeal, all the while allowing the finding of fault to stand. There can be no reproach against the respondent for not verifying the fracture at T7 with the radiologist. As far as T7 itself was concerned, the respondent had exercised his professional judgement and decided that whatever fracture there may be at that level, it was stable. However, the suspected fracture at T7 together with the violence of the impact, as well as the consequent concern of the respondent about back pain later on, should have led the respondent to examine more fully the state of the spine once the urgent first operation was done. The fault lies in not conducting the requisite neurological tests, and not examining the back properly with the available tests such as more localized x‑rays and scans. There is also no reason to find a fault for not taking cognizance of the nurses’ notes, since the respondent personally checked to see how the appellant was recovering after the second operation and asked specifically about back pain. Finally, a lack of immobilization, more specifically the second operation, constituted a fault, but only in conjunction with the first fault of not making further inquiries.
The Court is not clearly satisfied that there was an error in the Court of Appeal’s findings of fact as to causation. The Court of Appeal concluded that notwithstanding the faults committed by the respondent, the accident was the legal cause of the injury suffered by the appellant resulting in paraparesis. This conclusion was amply supportable by the evidence. The Court of Appeal ultimately gave its sanction to the respondent’s experts’ theory that it was at the point and moment of impact that there occurred a medullary contusion, which set in motion the chain of physiological phenomena which would lead to the subsequent paraparesis. The Court of Appeal committed no error in its interpretation of the evidence and its conclusion that given the initial harm caused by the accident, no causation can be attributed to the respondent’s faults. The initial harm of the accident simply outweighed any kind of effect the faulty treatment might have had, to the point where it cannot be said on a probabilistic basis that the faulty treatment had any causal effect. The chances of recuperation in this case were not significant enough on a balance of probabilities to establish that the faulty treatment caused the harm suffered.
The Court of Appeal made no error in its decision not to apply presumptions of causation in favour of the appellant. The refusal to make presumptions is as much an evidentiary decision as is any other acceptance or non‑acceptance of methods of proof. There was evidentiary material for the appellant to make his case. Article 2849 C.C.Q. provides that only serious, precise, and concordant presumptions are to be taken into consideration. These criteria were not fulfilled in this case. The evidence pointed in different and sometimes opposite directions. The Court of Appeal appropriately said that it is insufficient to show that the defendant created a risk of harm and that the harm subsequently occurred within the ambit of the risk created.
The rule of imposing solidary liability where a wrong causing injury has been jointly committed should not be applied in favour of the appellant. It should only be applied in cases where there is a true impossibility to determine the author of the delict, which impossibility did not exist here.
Cases Cited
Applied: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Laferrière v. Lawson, [1991] 1 S.C.R. 541; approved: Stéfanik v. Hôpital Hôtel‑Dieu de Lévis, [1997] R.J.Q. 1332; distinguished: Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; considered: Dorval v. Bouvier, [1968] S.C.R. 288; Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2; Schwartz v. Canada, [1996] 1 S.C.R. 254; Morin v. Blais, [1977] 1 S.C.R. 570; referred to: P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Moge v. Moge, [1992] 3 S.C.R. 813; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; Demers v. Montreal Steam Laundry Co. (1897), 27 S.C.R. 537; Pelletier v. Shykofsky, [1957] S.C.R. 635; Scotsburn Co‑operative Services Ltd. v. W. T. Goodwin Ltd., [1985] 1 S.C.R. 54; Cie de volailles Maxi Ltée v. Empire Cold Storage Co., [1995] Q.J. No. 731 (QL); Cooke v. Suite, [1995] R.J.Q. 2765; Toneguzzo‑Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; Hébert v. Lamothe, [1974] S.C.R. 1181; Bonenfant v. O.T.J. de la Rédemption, [1994] R.R.A. 225; Snell v. Farrell, [1990] 2 S.C.R. 311; Labelle v. Charette, [1960] Que Q.B. 770; Massignani v. Veilleux, [1987] R.R.A. 541; Cook v. Lewis, [1951] S.C.R. 830.
Statutes and Regulations Cited
An Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57, ss. 9, 85.
Civil Code of Lower Canada, arts. 1053, 1238, 1242.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 1480, 2846, 2847, 2849.
Authors Cited
Baudouin, Jean‑Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Baudouin, Jean‑Louis, et Yvon Renaud. Code civil du Québec annoté, t. 2, 3e éd. Montréal: Wilson & Lafleur, 2000.
Gibbens, R. D. “Appellate Review of Findings of Fact” (1991‑92), 13 Adv. Q. 445.
Jutras, Daniel. “Expertise scientifique et causalité”. Dans Congrès annuel du Barreau du Québec (1992). Montréal: Service de la formation permanente, Barreau du Québec, 1992, 897.
Karim, Vincent. Commentaires sur les obligations, vol. 1. Cowansville, Qué.: Yvon Blais, 1997.
Kerans, Roger P. Standards of Review Employed by Appellate Courts. Edmonton: Juriliber, 1994.
Mayrand, Albert. “L’énigme des fautes simultanées” (1958), 18 R. du B. 1.
Québec. Ministère de la Justice. Commentaires du ministre de la Justice: Le Code civil du Québec: Un mouvement de société, t. II. Québec: Publications du Québec, 1993.
Royer, Jean‑Claude. La preuve civile, 2e éd. Cowansville, Qué.: Yvon Blais, 1995.
Woods, Thomas S. “Overturning Findings of Fact on Appeal: A Justifiably Narrow Jurisdiction” (1998), 56 The Advocate 61.
APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 1658, [1999] Q.J. No. 2584 (QL), affirming a decision of the Superior Court, [1998] Q.J. No. 234 (QL). Appeal dismissed.
Frédéric St‑Jean and Benoît Mailloux, for the appellant.
Gérald R. Tremblay, Q.C., Louis Terriault and David E. Platts, for the respondent.
English version of the judgment of the Court delivered by
Gonthier J. –
I. Introduction
1 This tragic case raises issues in the areas of medical liability under Quebec civil law and appellate review of lower court decisions. The appellant, who was the victim of a serious car accident, appeals against a decision of the Quebec Court of Appeal dismissing his appeal of Morin J.’s decision in the Superior Court, which rejected his action in civil responsibility arising out of the treatment of his injuries by the respondent orthopaedic surgeon as well as another defendant physician against whom the appellant did not pursue his action in this Court. The general issue raised by this appeal is whether the Court of Appeal was justified in intervening in the Superior Court’s decision, and likewise whether this Court has reason to intervene in the Court of Appeal’s decision. An incidental question is whether this case warrants an application in favour of the appellant of a presumption as to causation between the respondent’s alleged fault and the harm suffered by the appellant. For the reasons that follow, I have concluded that the Court of Appeal was entitled to intervene in the Superior Court’s decision and find fault but nevertheless confirm the latter’s ruling that there was no causation. This Court is justified in modifying certain findings of fault made by the Court of Appeal, all the while allowing the finding of fault to stand. The latter court’s conclusion that there was no causation is affirmed. On the incidental question, there is no reason to apply a presumption in favour of the appellant since, given the divergent facts and expert opinion on the matter, there were no serious, precise, and concordant presumptions to be made in this case.
II. Facts
2 In the evening of August 11, 1986, the appellant was hit by an automobile travelling at 90 km/h an hour while he was hitchhiking along highway 20 in Saint-Jean-Chrysostome, in the Quebec City area. He was transported by ambulance to Hôtel-Dieu de Lévis Hospital where he came under the care of the attending emergency doctor, Dr. Couture. The doctor found that the appellant was conscious but agitated, had open fractures in both legs and abrasions on the abdomen, and was bleeding from the head.
3 The appellant was hovering between life and death upon arrival at the hospital. He was losing a lot of blood from the lower limbs and his pulse was very rapid. The appellant suffered from partial amnesia so his memory of events between noon on August 11 and the evening of August 18 is confused at best. Dr. Couture treated him for approximately three hours. The doctor asked for x-rays to be done on the lungs, abdomen, thorax, and the dorsolumbar column, indicating in the x-ray requisition that this was a case of a “polytrauma”. These x-rays showed nothing abnormal except that Dr. Couture suspected a fracture in the spine at the T7 vertebra. He made a note of this as well as the appellant’s complaint of back pain which he testified meant general back pain.
4 The appellant was examined by the respondent Dr. Mercier, an orthopaedic surgeon, later that evening. The respondent was aware of the suspected fracture at T7 and noted it as follows: [translation] “Fx T7? Will see with radiologist”. He nonetheless concluded that the fracture was stable or that it was actually only a benign anomaly, thus not impeding his ability to operate. The operation was extremely urgent as it was necessary to treat the open wounds in the legs.
5 The appellant was brought to the operating room that evening to treat the leg fractures. The respondent noted that the procedure was well tolerated. There are two notes describing the appellant’s condition written by the respondent that evening. The first indicates that the neurovascular exam was satisfactory. The respondent said at trial that this exam was basically a vascular one, despite the terminology used. The second note, which is undated but considered to have been written at the same time, reads: [translation] “From a neurological point of view, drowsy and agitated at times. No neurovascular deficit but difficult to assess on lower limbs given the open fractures. No dorsolumbar pain.” The respondent said at trial that what he meant by the latter observation was that there was no specific back pain.
6 In the afternoon of August 12, a nurse entered a note that there was good warmth and colour to the two feet as well as good movement of the toes of both feet. She observed that both feet, but especially the left one, were edematous.
7 On August 13, the respondent decided that the appellant’s condition had sufficiently improved to allow another operation on the leg the next day. Unlike the first operation, this one was not urgent though it was desirable that it be performed promptly so as to avoid prolonging immobilization.
8 The second operation was carried out on August 14. A nurse’s note states that the appellant was carried to the operating room in a stretcher, contrary to the usual practice of taking the patient to the operating room in his own bed. The appellant had earlier in the day complained of pains in the back and abdomen, as well as being thirsty and hot. The operation took place on an orthopaedic table and it went well.
9 In the evening of August 14, a nurse entered a note that the appellant could feel physical contact to his legs but that he was unable to move his legs and toes. The same observation was made in the course of the next few days.
10 On August 15, the respondent attributed this condition to sciatica on the right side consequent to the surgery. The respondent noted on August 18 that there was still no recuperation of the sciatic nerve. A similar observation was made on August 21, the day a third operation was carried out to modify a traction device attached to the leg. Since the appellant was able to feel his toes when they were touched, the respondent decided that there was nonetheless an amelioration in the sciatica.
11 The respondent left for vacation on August 22 and was replaced by Dr. Nolin, who was given a treatment plan that called for progressive mobilization of the appellant. The appellant started moving around in a wheelchair and was able to move around in his bed with the aid of supports.
12 The appellant was discharged from the hospital on August 27 and was scheduled to meet with the respondent in the out-patient clinic on September 12. It was during this visit, upon removing the plaster covering the right leg, that the respondent witnessed spasms to his great surprise, a symptom of spastic paraplegia. He consulted a neurologist, Dr. Bergeron, who confirmed a condition of spastic paraplegia arising from a medullary contusion.
13 No x-ray of the back was taken on September 12. The appellant returned to school while waiting for more thorough tests, which were fixed for September 19. The x-rays and myelogram revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of 9 millimetres in relation to T9. A more detailed review of the x-rays taken on August 11 revealed that the fracture at T8 was visible but that the subluxation was only 3 millimetres. Tomography tests were also done on September 22.
14 The respondent ordered the immobilization of the appellant and proposed surgery in order to decompress the spinal cord. On September 24, the appellant requested to be transferred to the Enfant-Jésus Hospital, where the treating neurosurgeon decided not to operate.
15 The appellant was diagnosed with paraparesis, a type of paralysis where the motor activity of the lower limbs is undermined but sensitivity is still retained. He underwent physiotherapy and continued with his education, obtaining a law degree and being called to the Quebec Bar.
16 The appellant applied for and received compensation from the Société de l’assurance automobile du Québec (“SAAQ”). The SAAQ informed him in July 1991 that it would no longer grant him full compensation as it found no causal relationship between the paraparesis and the automobile accident of August 11, 1986. However, after the Superior Court’s ruling finding the car accident to be the cause of the appellant’s injuries, the SAAQ reversed its decision.
17 The appellant’s action against the respondent and Dr. Couture, the emergency-room doctor, went to trial on February 10, 1997 before Rioux J. The appellant’s action against Hôtel-Dieu de Lévis Hospital was settled out of court on March 23, 1994. Five medical experts appeared for each side. After the case had been heard and while Rioux J. was deliberating, he fell ill and so the case was transferred to Morin J., to be decided on the basis of the evidence entered at trial.
III. Relevant Statutory Provisions
18 An Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57
9. Proceedings pending continue to be governed by the former legislation.
. . . A further exception is made for all matters concerning proof and procedure in such proceedings.
85. The conditions of civil liability are governed by the legislation in force at the time of the fault or act which causes the injury.
Civil Code of Lower Canada
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
1238. Presumptions are either established by law or arise from facts which are left to the discretion of the courts.
1242. Presumptions not established by law are left to the discretion and judgment of the court.
Civil Code of Québec, S.Q. 1991, c. 64
2846. A presumption is an inference established by law or the court from a known fact to an unknown fact.
2847. . . .
A presumption concerning presumed facts is simple and may be rebutted by proof to the contrary; a presumption concerning deemed facts is absolute and irrebuttable.
2849. Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration.
IV. Judgments Below
A. Quebec Superior Court, [1998] Q.J. No. 234 (QL)
19 Morin J. found that Dr. Couture had committed no fault in the manner that he treated the appellant and accordingly rejected the action against him.
20 Morin J. also found the respondent Dr. Mercier to be without fault. He began with the suspected fracture at T7 and concluded that either it was stable or it was not a fracture at all. This was the assessment of all of the expert witnesses as well as the respondent himself. In those circumstances, there can be no reproach for not discussing T7 with the radiologist since it would not have led to anything and there were no injuries resulting from this supposed fracture.
21 The trial judge found that reviewing the x-rays with the radiologist would not have shed any light on the T8-T9 fracture-luxation since the radiologist himself testified that he could not see it on the x-rays taken on August 11, 1986. Similarly, the respondent could not be blamed for not seeing it.
22 On the question of back pain, Morin J. accepted the respondent’s testimony that the reason he wrote [translation] “no dorsolumbar pain” was because the appellant indicated no precise back pain in response to questions posed by the respondent on that subject. Since there was no indication to suspect a fracture of the spinal column, the respondent had no reason to immobilize the patient to stabilize the spine.
23 The respondent diagnosed the appellant with a sciatic problem when, in retrospect, it was a case of paraparesis stemming from a medullary (spinal) contusion. Morin J. listed some factors explaining why this could not be characterized as a fault. By August 15, when the respondent made the diagnosis of sciatica, he had the radiologist’s report which made no mention of the fracture-luxation at T8-T9. The appellant did not complain to the respondent of any specific back pain. Even though the nurses took note of back pain, they testified that this meant that it was of a generalized nature. The appellant himself testified that from what he remembers of that time, he had back pain but of a tolerable nature. Morin J. found that it was not unreasonable to think that the appellant did not consider it important to mention it to the respondent. Even though the appellant’s friend, Jocelyn Richard, did testify that the former complained to him of back pain, there was no indication that the respondent was witness to this. Moreover, the friend did not mention the complaints of back pain to any medical personnel. Richard also claims to have frequently seen the appellant with priapism (which would have been indicative of medullary trauma) but no nurse ever noticed this, and they testified that they would have taken note of such a state had they seen it. There is no evidence that the respondent knew of this condition. Finally, the state of the appellant’s lower limbs made an adequate neurological exam very difficult.
24 For all of these reasons, Morin J. concluded that the respondent could not be reproached for not having diagnosed a medullary contusion rather than a sciatic condition. This conclusion is reinforced by the fact that many experts testified that the nature of the injuries suffered by the appellant was very unusual, which made diagnosis even more difficult.
25 Even though Morin J. found there to be no fault and therefore no civil liability, he canvassed the arguments regarding the causal link between the purported fault and the injury. He indicated that the respondent’s experts’ theory seemed more probable, but that even if it was not, the court found itself confronted by two opposing medical theories regarding causation among which it could not choose one against the other. He consequently found that the appellant had not discharged his burden to show causation and thus there was a second reason to dismiss the action.
B. Quebec Court of Appeal, [1999] R.J.Q. 1658
26 The Court of Appeal (Gendreau, Proulx and Rousseau-Houle JJ.A.) concluded that Morin J. had asked himself the wrong question in determining whether there was a fault. Morin J. had asked whether the respondent had committed a fault by not diagnosing the neurological deficit and the unstable fracture at the T8 and T9 vertebrae. The true question to be asked according to the Court of Appeal was whether the respondent [translation] “had abided by the rules of art in the treatment of a seriously injured patient who has the potential, if not the probability, of having a back fracture” (p. 1662). This error on the part of the trial judge led him to apply the wrong standard in evaluating the conduct of the respondent and therefore permitted the Court of Appeal to make its own assessment as to fault.
27 The Court of Appeal found that in not following up on the suspected fracture at the T7 vertebra, in not doing more complete neurological exams, in not consulting the nurses’ notes alerting to the possibility of a neurological deficit, and in not ordering immobilization of the spinal column, the respondent did not behave like a prudent and diligent orthopaedic surgeon. The respondent had thus committed a fault.
28 On the issue of causation, the Court of Appeal corrected what it considered to be a mistaken approach by Morin J. The trial judge had refused to take sides in the experts’ dispute as to the cause of the neurological deficit, saying that it was not his role to judge between two opposed medical theories. The Court of Appeal found that such an approach to causation would unduly favour defendants in all cases where the establishment of the causal link depends on contradictory expert scientific evidence. Even if the scientific conclusions are not absolute or not incontestable, a judge must convert scientific conclusions to a legal conclusion since scientific causation is not the same as legal causation. The latter is established on the balance of probabilities based on all of the evidence.
29 The Court of Appeal rejected the appellant’s claim for a reversal of the burden of proof. It said that there was enough evidence to maintain the traditional rule of the burden of proof. It specified that this rule should be set aside in only the most exceptional cases, such as the one where two defendants negligently fire in the same direction and at the same time, their delictual conduct eliminating any means of proof available to the plaintiff.
30 On the question of causation, the Court of Appeal concluded that the medullary injury was already complete on the evening of the accident and that the manifestations of that injury presented themselves gradually. It took note that even the appellant’s principal experts did not exclude the hypothesis that a subluxation already occurred in the evening of August 11 and that this entailed a certain medullary contusion. Their only contention was that only external mobilization could account for the subluxation of T8. The Court of Appeal accepted the respondent’s experts’ evidence regarding the ligaments’ rupture, compression, and MRI results to conclude that the medullary lesion was probably complete at the time of the accident. It acknowledged that an early immobilization resulting in a better recuperation was more than a simple possibility, but that this was not significant enough to give rise to civil liability given the extent of the initial harm caused.
V. Issues
31 The questions raised by this appeal are the following:
(1) What is the standard of review of a lower court decision?
(a) Did the Court of Appeal properly intervene in the Superior Court decision?
(b) Is there a basis for this Court to intervene in the Court of Appeal decision?
(2) Is there a reason to apply a presumption of causation in favour of the appellant?
VI. Analysis
A. Transitional Law
32 The events in this case all took place before the coming into force of the new Civil Code of Québec in 1994. Sections 9 and 85 of An Act respecting the implementation of the reform of the Civil Code make it clear that the substantive law governing this case is that of the Civil Code of Lower Canada, more specifically art. 1053 of that Code. While questions of evidence such as presumptions are governed by the new code, there has been no break in the approach towards presumptions from the previous regime. The relevant provisions in the Civil Code of Lower Canada did not provide a definition and did not specify the kind of presumptions to be taken into account. However, the case law has always made those specifications and the new code has simply codified them in art. 2849 (see Ministère de la Justice, Commentaires du ministre de la Justice (1993), vol. II, at p. 1783; J.-L. Baudouin and Y. Renaud, Code civil du Québec annoté (3rd ed. 2000), vol. 2, at pp. 3355-58).
B. Reviewing Lower Court Decisions
33 Questions about the correct legal test are questions of law (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35). In the case at bar, the question of the correct inquiry or legal test in determining a delictual fault is a question of law.
34 An appellate court must review a lower court’s judgment on questions of law to determine their correctness (P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at p. 189 (a contrario); Moge v. Moge, [1992] 3 S.C.R. 813, at p. 833; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 647; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 373 (a contrario); and R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at p. 90).
35 Questions of fact are “questions about what actually took place between the parties” (Southam, supra, at para. 35). The question of whether the respondent did this or that is a question of fact, as is the question of whether the accident or any lack of immobilization caused the appellant’s state of paraparesis or hindered his recovery.
36 It is established law that an appellate court such as a provincial court of appeal should not interfere with a trial judge’s findings of fact, absent a palpable and overriding error in the understanding of the evidence (see Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211, at para. 46, where L’Heureux-Dubé J. cites the relevant cases going back to Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802, and Dorval v. Bouvier, [1968] S.C.R. 288). The rule is partly grounded in the recognition of the fact that the trial judge had the opportunity to observe the witnesses and hear the testimonies first‑hand, and is therefore better able to assess the facts.
37 The principle of non-intervention on questions of fact is also applicable to a second appellate court such as this Court vis-à-vis a first appellate court (Demers v. Montreal Steam Laundry Co. (1897), 27 S.C.R. 537, at pp. 538-39; Pelletier v. Shykofsky, [1957] S.C.R. 635, at p. 638; Dorval, supra, at p. 294; Scotsburn Co-operative Services Ltd. v. W. T. Goodwin Ltd., [1985] 1 S.C.R. 54, at pp. 63-64).
38 In Demers, supra, at pp. 538-39, Taschereau J. said:
For it is settled law upon which we have often acted here, that where a judgment upon facts has been rendered by a court of first instance, and a first court of appeal has reversed that judgment, a second court of appeal should interfere with the judgment on the first appeal, only if clearly satisfied that it is erroneous. . . .
This statement was endorsed in Pelletier, supra, and both of these cases were discussed in Dorval, supra, where Fauteux J. examined the principle that must govern this Court’s review of an appeal court’s judgment on questions of fact once the latter has examined the facts and arrived at a conclusion after justifiably intervening in the trial judgment. He said, at p. 294:
[translation] Thus, in order to intervene in this case, it would be necessary to be clearly satisfied that the judgment of the Court of Appeal is erroneous, either with respect to the reason for its intervention or with respect to its assessment of the evidence in the record.
Fauteux J. said that he was not “clearly satisfied” that the Court of Appeal erred and therefore dismissed the appeal.
39 Similarly in Scotsburn, supra, this Court was asked to review the decision of a court of appeal where the latter justifiably intervened in the trial judgment. Dickson J. (as he then was) applied the rule in Dorval, supra, and held, at p. 64, that he was not “clearly satisfied” that there was an error by the Court of Appeal in its interpretation of the evidence.
40 In Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2, even though this Court did disturb the findings of fact made by the Court of Appeal, it did so only after affirming the validity of the principle expressed in Dorval, supra, and finding that the Court of Appeal erroneously intervened in the trial judgment. This Court intervened for the purpose of restoring the trial decision, which simply confirms the general principle of appellate non-intervention.
41 A peculiarity of the case at bar is that the first trial judge, Rioux J., fell ill after hearing all the evidence and was consequently substituted by Morin J. The latter made his decision based on the evidence entered at trial. There is seemingly less of a basis for deference where the trial judge did exactly what the Court of Appeal and, by extension, this Court do to arrive at a decision. However, the Quebec Court of Appeal has upheld the principle of deference in cases similar to the one at bar where the judge of first instance is not the one who presided over the trial: Cie de volailles Maxi Ltée v. Empire Cold Storage Co., [1995] Q.J. No. 731 (QL); Cooke v. Suite, [1995] R.J.Q. 2765.
42 Even where observation of the witnesses and hearing the testimonies are not of any particular importance for the disposition of the case, the principle of non-intervention is still important since the trial judge is entrusted with the task of making a decision based on the facts, and is presumed to have diligently discharged that duty. In Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114, the British Columbia Court of Appeal justified its intervention on the basis that it was in as good a position to draw inferences from the expert evidence as was the trial judge since there was no issue of credibility. In this Court, McLachlin J. (as she then was), at p. 122, agreed that the principle of non-intervention does not apply with the same force where the credibility of witnesses is not in issue. However, she did observe that the weight to be assigned to the various pieces of evidence under our trial system is essentially the province of the trier of fact. More broadly it is correct to say that where a trial judge has been given the mandate to make a decision based on questions of fact, there is still a need for appellate judicial restraint given that the assessment of facts is the province of the trier of fact. Also, the autonomy and integrity of the trial process as well as resource allocation militate in favour of the finality of judgments (see Schwartz v. Canada, [1996] 1 S.C.R. 254, at para. 32; T. S. Woods, “Overturning Findings of Fact on Appeal: A Justifiably Narrow Jurisdiction” (1998), 56 The Advocate 61, at pp. 63 and 65-67; Kerans, supra, at pp. 10-16; and R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Adv. Q. 445, at pp. 445-47).
43 Schwartz, supra, brought an element of refinement to the established case law that a second appellate court should only disturb findings of fact if it is clearly satisfied that an error has occurred in the first appellate judgment. La Forest J. said, at para. 37:
In my view, nothing justifies a second appellate court in showing that kind of deference to the assessment of the balance of probabilities made by the first appellate court. If the second appellate court agrees that the trial judge made some kind of error that justifies intervention, it should be free to reconsider the evidence and substitute its own findings of fact for that of the first court of appeal’s if disagreement occurs.
44 Schwartz, supra, is a refinement on the previous case law in the sense that where the first appellate court reverses the trial judge on findings of fact related to credibility, this Court should not feel constrained in assessing the evidence on a balance of probabilities since the first appellate court was no better placed in assessing credibility, and this Court is faced with a trial level decision going in one direction and an appellate decision going in the opposite direction. This Court can in that context make its own assessments on questions of fact such as whether something has been established on a balance of probabilities.
45 In contrast, where there are concurrent findings of fact at the lower courts, this Court will be hesitant to intervene and disturb findings of fact. This Court has alrea