Ter Neuzen v. Korn

Ter Neuzen v. Korn
Collection
Supreme Court Judgments
Date
1995-10-19
Report
[1995] 3 SCR 674
Case number
23773
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
British Columbia
Subjects
Contract
Torts
Notes
SCC Case Information: 23773
Decision Content
ter Neuzen v. Korn, [1995] 3 S.C.R. 674
Kobe ter Neuzen Appellant
v.
Dr. Gerald Korn Respondent
and
HIV‑T Group (Blood Transfused), the Canadian
Association of Transfused Hepatitis C Survivors,
the Canadian Hospital Association and
the Canadian Red Cross Society Interveners
Indexed as: ter Neuzen v. Korn
File No.: 23773.
1995: February 2; 1995: October 19.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Negligence ‑‑ Physicians and surgeons ‑‑ Patient undergoing artificial insemination procedure and contracting HIV through infected semen of donor ‑‑ Whether physician could be found negligent notwithstanding conformity with standard medical practice ‑‑ Whether trial judge erred in instructing jury that prevailing standard of practice could itself be found to be negligent.
Contracts ‑‑ Sale of goods ‑‑ Implied conditions ‑‑ Implied warranty ‑‑ Patient undergoing artificial insemination procedure and contracting HIV through infected semen of donor ‑‑ Whether implied conditions under Sale of Goods Act applicable ‑‑ Whether implied warranty exists at common law that semen would be of merchantable quality and fit for its purpose ‑‑ Sale of Goods Act, R.S.B.C. 1979, c. 370.
Damages ‑‑ Non‑pecuniary damages ‑‑ Limit ‑‑ Patient undergoing artificial insemination procedure and contracting HIV through infected semen of donor ‑‑ Whether trial judge erred in failing to charge jury on rough upper limit on non‑pecuniary damages ‑‑ If not, whether damages awarded for non‑pecuniary loss ought to be adjusted accordingly.
The appellant participated in the respondent obstetrician and gynaecologist's artificial insemination ("AI") program from 1981 until January 1985, and became infected by HIV as a result of the final AI procedure she underwent. The respondent had not warned her of the risk of HIV infection. The first documented case in the world of HIV transmission through AI was published in the lay media in July 1985 and in a medical journal in September 1985. None of the obstetric literature mentioned AI as a mode of transmission of HIV and no article summarized the disease risks of AI before 1986. As of January 1985, there was no test available for the detection of HIV in semen or blood in Canada. Although the respondent knew that HIV could be transmitted by heterosexual sex, he was not aware that HIV could be transmitted by AI until July 1985. There was expert evidence at trial that the respondent's AI practice was in keeping with general practices across Canada. Specifically, his practice of recruitment and screening of donors and semen accorded with standard practice. The trial judge instructed the jury that it was open to find the respondent negligent on the basis that he failed to comply with the standard medical practice at that time. Alternatively, they could find that the approved practice itself was negligent. With respect to the sale of goods issue, the trial judge instructed the jury to determine first whether the contract between the parties was primarily one for goods or primarily for services. If it was primarily for goods, then the Sale of Goods Act with its implied conditions applied. The trial judge also instructed the jury that aside from the Act, they had to consider whether there was a warranty of fitness and merchantability at common law, but that any common law warranty would simply amount to the same thing as negligence. The jury held that the contract between the parties was primarily one for services and therefore the Sale of Goods Act did not apply. They found the respondent negligent, however, and awarded damages totalling $883,800, including $460,000 for non‑pecuniary damages. The Court of Appeal set aside the verdict and ordered a new trial on the issue of liability as well as damages. With respect to the negligence claim, the court distinguished between two aspects of the respondent's practice: the conduct of the AI procedure, which reflected the current state of knowledge as to the risk of transmission of HIV involved in the use of that procedure, and the screening and follow‑up of donors. The court concluded that it was impossible to determine whether the jury found the respondent negligent on the first or second aspects of his practice. On the evidence, it was not available to the jury to find that the respondent ought to have known of the risk of HIV by AI. The trial judge charged the jury in this manner, however, and it may have been the basis upon which the jury found negligence. Therefore, the verdict could not stand. The court also concluded that while it was reasonable for the trial judge not to have instructed the jury on the rough upper limit for non‑pecuniary damages when neither counsel had asked for such a charge, the award must be corrected to conform with the jurisprudence if the damages exceed the limit.
Held: The appeal should be dismissed.
Per La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. The conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. It was not possible for a jury acting judicially to have found that, in 1985, the respondent ought to have known of the risk of HIV by AI. While conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is fraught with obvious risks such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. The question as to whether the trier of fact can find that a standard practice is itself negligent is a question of law to be determined by the trial judge irrespective of the mode of trial. The first aspect of the negligence claim was not one that the jury could decide without the aid of expert evidence. Accordingly, the trial judge erred in inviting them to do so.
With respect to the second aspect of the negligence claim, infection with HIV is within the same class of injury as other sexually transmitted diseases and the respondent could be liable for the damage caused notwithstanding that he did not foresee that a failure to take reasonable steps to protect his patients could result in HIV infection. It would be sufficient to found liability if it is established that the respondent ought to have foreseen the class of injury. The evidence as to standard practice with respect to the screening and follow‑up of donors was sketchy and it would be open to the jury to find that there was at the relevant time no standard practice. On the other hand, the jury could also find that the standard practice was not to screen donors or carry out follow‑up interviews beyond what the respondent did. The jury could determine the appropriate standard without reliance on expert evidence.
The Information Sheet provided by the respondent did not amount to a warranty that the donor would not be homosexual or a drug abuser. There is no indication that there was any intention on the part of either party that there should be contractual liability in respect of the statement in the Information Sheet. Moreover, it appears that the appellant did not raise this issue in either court below.
In order for the Sale of Goods Act to apply, a contract must be primarily for the purpose of selling goods. If the sale of a good is merely incidental to what is primarily a contract for services, then the statute will not imply a warranty. Assuming that there was in fact a sale of semen between the appellant and respondent, it cannot be contended that the contract was one primarily for the sale of semen such as to attract the application of the Sale of Goods Act. Apart from the Act, a court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.
While the appellant has suffered immensely as a result of this tragedy, and AIDS is a dreadful disease which will eventually take her life prematurely, with respect to non‑pecuniary losses this case is no different from other tragedies and the adjusted rough upper limit on non‑pecuniary damages should accordingly apply. The trial judge should instruct the jury as to an upper limit if, after considering the submissions of counsel, he or she is of the opinion that the damages by reason of the type of injury sustained might very well be assessed in the range of or exceeding the upper limit. On the other hand, if the trial judge is of the view that the injuries involved will not likely produce an award approaching the rough upper limit, it is best that the trial judge not charge the jury on the matter. Whether the jury is or is not advised of the upper limit, if the award exceeds the limit the trial judge should reduce it to conform with the "cap" established, adjusted for inflation. In the present case it was reasonable for the trial judge not to give an instruction on the upper limit, but since the damages awarded for non‑pecuniary losses far exceeded that limit, he ought to have reassessed the award.
Per L'Heureux‑Dubé J.: Sopinka J.'s reasons were agreed with, except with respect to the trial judge's instruction to the jury on the upper limit of non‑pecuniary damages. The determination of the quantum of damages should be left to the jury without instructions as to the upper limit, subject to the judge's power to reduce excessive awards. It has always been held improper for the trial judge or counsel to express any views as to the quantum of damages. It is well established that the amount of damages is a question of fact for the jury to determine, and not a question of law for the judge. The establishment of an upper limit for non‑pecuniary damages only affects the quantum of the awards, not the way in which they are determined. The existence of an upper limit as a matter of law remains consistent with not instructing the jury as to such upper limit. By so instructing the jury, the status quo in novel areas of the law would be institutionalized. There is no evidence as to the inadequacy of the present system. Finally, from a pragmatic standpoint, to require the trial judge to charge the jury on the upper limit of non‑pecuniary damages may be inviting unmeritorious appeals on that part of the judge's instructions to the jury, given that, when it comes to damages, no figure will ever be "right".
Cases Cited
By Sopinka J.
Followed: Perlmutter v. Beth David Hospital, 123 N.E.2d 792 (1954); Fisher v. Sibley Memorial Hospital, 403 A.2d 1130 (1979); St. Luke's Hospital v. Schmaltz, 534 P.2d 781 (1975); not followed: Cunningham v. MacNeal Memorial Hospital, 266 N.E.2d 897 (1970); referred to: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Lindal v. Lindal, [1981] 2 S.C.R. 629; Wilson v. Swanson, [1956] S.C.R. 804; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; McCormick v. Marcotte, [1972] S.C.R. 18; Roe v. Ministry of Health, [1954] 2 All E.R. 131; Vancouver‑Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831; Roberge v. Bolduc, [1991] 1 S.C.R. 374; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man. C.A.), aff'd [1950] 4 D.L.R. 223 (S.C.C.); R. v. Côté, [1976] 1 S.C.R. 595; Gee v. White Spot Ltd. (1986), 7 B.C.L.R. (2d) 235; G. H. Myers and Co. v. Brent Cross Service Co., [1934] 1 K.B. 46; Young & Marten Ltd. v. McManus Childs Ltd., [1969] 1 A.C. 454; G. Ford Homes Ltd. v. Draft Masonry (York) Co. (1983), 43 O.R. (2d) 401; Arnold v. Teno, [1978] 2 S.C.R. 287; Crosby v. O'Reilly, [1975] 2 S.C.R. 381.
By L'Heureux‑Dubé J.
Referred to: Gray v. Alanco Developments Ltd. (1967), 61 D.L.R. (2d) 652; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. Board of School Trustees of School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287.
Statutes and Regulations Cited
Negligence Act, R.S.B.C. 1979, c. 298, s. 6.
Sale of Goods Act, R.S.B.C. 1979, c. 370, ss. 17, 18.
Authors Cited
British Columbia. Law Reform Commission. Report on Compensation for Non‑Pecuniary Loss. Vancouver: The Commission, 1984.
Charles, W. H. R. Charles Handbook on Assessment of Damages in Personal Injury Cases, 2nd ed. Toronto: Carswell, 1990.
Fleming, John G. The Law of Torts, 7th ed. Sydney: Law Book Co., 1987.
Fridman, G. H. L. Sale of Goods in Canada, 2nd ed. Toronto: Carswell, 1979.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 81 B.C.L.R. (2d) 39, 103 D.L.R. (4th) 473, [1993] 6 W.W.R. 647, 29 B.C.A.C. 1, 48 W.A.C. 1, 16 C.C.L.T. (2d) 65, setting aside the jury's verdict, which found the respondent negligent and awarded damages to the appellant, and ordering a new trial. Appeal dismissed.
Sandra J. Harper and Kathleen Birney, for the appellant.
Christopher E. Hinkson, Q.C., and M. Lynn McBride, for the respondent.
Written submissions only by Kenneth Arenson, for the interveners HIV‑T Group (Blood Transfused) and the Canadian Association of Transfused Hepatitis C Survivors.
Written submissions only by Daniel A. Webster, Q.C., for the intervener the Canadian Hospital Association.
Written submissions only by Peter K. Boeckle and Anil Varma, for the intervener the Canadian Red Cross Society.
//Sopinka J.//
The judgment of La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
1 Sopinka J. -- This appeal raises issues concerning the liability of the respondent physician for conducting an artificial insemination ("AI") procedure which resulted in his patient, the appellant, contracting the Human Immunodeficiency Virus ("HIV") through the infected semen of the donor. Specifically, this Court must address whether the respondent physician could be found negligent, notwithstanding conformity with standard medical practice, and whether the trial judge erred in instructing the jury that the prevailing standard of practice could itself be found to be negligent.
2 As well, this appeal also raises for consideration the issue of whether the implied conditions under the Sale of Goods Act, R.S.B.C. 1979, c. 370, are applicable in the present circumstances or whether there exists an implied warranty at common law that the semen would be of merchantable quality and fit for its purpose.
3 Finally, this appeal requires the Court to consider whether the rough upper limit for non-pecuniary damages, established by this Court in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, ought to have been applied by the jury in the present case. First, it must be decided whether the trial judge erred in failing to charge the jury on the rough upper limit. If the trial judge was not in error, this Court must decide whether the damages awarded for non-pecuniary loss, which far exceeded the upper limit established in Andrews, ought nonetheless to be adjusted in accordance with those principles.
4 I should note that the interveners HIV-T Group (Blood Transfused) and Canadian Association of Transfused Hepatitis C Survivors also raised the issue of whether the medical profession ought to be held liable for the distribution of defective products, such as semen, based on a theory of strict liability in tort. This approach has been used in some American cases. However, I am in agreement with the respondent that this is not the appropriate case to address this important issue which could have far-reaching implications for the medical profession and the Canadian system of public health insurance in general. The appellant did not raise this issue in her pleadings at trial, nor at the Court of Appeal. Thus, the issue has been raised for the first time at this Court by the interveners. In these circumstances, the applicability of strict liability in tort is best left for another day.
I. Facts
5 The facts and the evidence of the expert witnesses at trial were thoroughly summarized in the reasons of the Court of Appeal. I do not intend to review the evidence of each expert individually again in these reasons. However, in order to resolve this appeal, it is necessary to review the relevant facts in some detail and highlight some of the key aspects which emerge from the evidence.
6 The respondent is an obstetrician and gynaecologist and has practised AI since 1974. The appellant was a psychiatric nurse. She participated in the respondent's AI program from 1981 until January 21, 1985, during which time she underwent about 35 AI procedures. It was agreed that the appellant became infected by HIV as a result of the AI procedure on January 21, 1985. The respondent did not warn the appellant of the risk of HIV infection resulting from the AI procedure (also referred to as "the risk").
7 The first report of HIV in female sex partners of men with AIDS appeared in early 1983. At that time, heterosexual intercourse was seen as a potential source of infection. However, there was no link between AI and HIV. In December 1983, for the first time, the risk of contracting AIDS was related to blood transfusions. In October 1983, an important letter was published by Dr. Mascola in the New England Journal of Medicine suggesting that there was a risk of transmitting sexually transmitted diseases ("STDs") through AI. However, this prestigious journal was not widely read by gynaecologists and the respondent did not read this letter. It appears that Dr. Mascola was the first person in the world to express a concern about the possibility of transmitting HIV through AI. The first documented case in the world of HIV transmission through AI was published in the lay media in July 1985 and in a medical journal in September 1985. None of the obstetric literature mentioned AI as a mode of transmission of HIV and no article summarized the disease risks of AI before 1986.
8 The evidence reveals that the knowledge about HIV was rapidly growing in the period of 1984-85; however, it was still quite limited and confusing in the early days. Generally, research scientists and health care officials in the AIDS field were expected to be more up to date on medical developments concerning HIV than clinical practitioners and the general medical community. In 1984, the Elisa test was developed in the United States which enabled doctors to test for HIV in blood and tissues. However, as of January 21, 1985, there was no test available for the detection of HIV in semen or blood in Canada. The Elisa test did not become available in Canada until later in 1985. Therefore, it was impossible to test the semen of donors for HIV at the time the appellant became infected.
9 At this time, it was widely believed that HIV was an STD; however, it was hoped that the atraumatic AI procedure was free of risk. It was believed that the small abrasions caused by intercourse were necessary in order for the virus to get into the bloodstream. Thus, in late 1984, a possibility of the transmission of HIV through heterosexual intercourse was known, but AI was not seriously considered to put anyone at risk of being infected.
10 Some of the experts testified that an analogy could be drawn between Hepatitis B and HIV, since both were STDs. It was not until late 1986 that it was recognized that Hepatitis B could be transmitted by AI and it was common ground that there were no published reports of Hepatitis B transmissions by AI until the fall of 1987.
11 In mid-1984, four babies in Australia were found to have acquired AIDS by blood transfusions. Since it was known that the Elisa test would eventually be available for clinical use, this led to a ministerial decree to impose a moratorium on all body fluid and tissue transfers. As a result, all AI clinics were closed at this time, although this was not supported by the whole medical profession in Australia. This event was not widely publicized in North America and the respondent, as well as the general medical community in North America, were unaware of the closures in Australia until later in 1985. Apparently, there was little exchange of medical information on the subject of HIV between Australia and North America. In September 1985, an article in the British medical journal Lancet revealed that four Australian women had contracted HIV from AI. When the respondent learned of this he immediately discontinued his AI program and recommended that his donors and the appellant be tested.
12 The American Fertility Society published guidelines for the use of semen donor insemination for the first time in 1986 and these guidelines were revised in 1988. The new guidelines recommended the use of frozen semen only, which is stored for at least six months. Blood samples for HIV antibodies are taken at the time of semen donation and six months later. The semen is only to be used if both samples are HIV negative. These guidelines were not published by the American Center for Disease Control until February 1988. The respondent did not start testing for Hepatitis B until sometime in 1987-88, when the guidelines were issued.
13 Although the respondent knew that HIV could be transmitted by heterosexual sex, as well as through blood transfusions, he was not aware that HIV could be transmitted by AI until July 1985, when he heard about the experience in Australia. None of the medical publications he read prior to January 1985 nor any of the medical meetings he attended suggested that there was a risk of contracting HIV through AI. The respondent did not read Dr. Mascola's letter which appeared in the New England Journal of Medicine. He did not make any connection between the fact HIV was an STD and the possibility that it could be passed on through AI since there was nothing recorded to this effect.
14 There was expert evidence that the respondent's AI practice was in keeping with general practices across Canada. Specifically, his AI practice of recruitment and screening of donors and semen accorded with standard practice across Canada. The respondent used only fresh semen prior to January 1985. He personally interviewed all his donors instead of using a questionnaire. In the interview, the respondent obtained a complete medical history of the prospective donor including whether the donor was heterosexual or homosexual. The respondent rejected homosexuals because he considered that they had practices that could potentially transmit certain diseases to recipients. The respondent also inquired into the levels of sexual activity since active donors were more likely to be exposed to STDs.
15 The respondent also conducted a general physical examination. He tested for gonorrhoea, syphilis and other bacteria and conducted blood and semen tests for Rh blood factor. Other than on a random basis, there was no repeat testing of semen nor re-interviewing of donors. Of the 28 active donors used by the respondent in his AI practice, only the donor whose semen was administered to the appellant was infected by HIV. That donor had been asked whether he was heterosexual or homosexual and he replied that he was heterosexual. After the donor tested HIV positive, he told the respondent that he was bisexual.
16 At trial, the trial judge instructed the jury that it was open to find the respondent negligent on the basis that he failed to comply with the standard medical practice at that time. Alternatively, the trial judge stated that the jury could find that the approved practice itself was negligent.
17 With respect to the sale of goods issue, the trial judge instructed the jury to first determine whether the contract between the parties was primarily one for goods or primarily for services. If it was primarily for goods, then the Sale of Goods Act applied. However, the jury held that the contract was primarily one for services and therefore the Act did not apply. The trial judge also instructed the jury that aside from the Act, they had to consider whether there was a warranty at common law. However, in this context, the trial judge stated that any common law warranty would simply amount to the same thing as negligence. In other words, under the common law warranty in a contract for medical services, the respondent undertakes to meet the standards of a reasonably competent person practising in his field. The doctor does not warrant that the services will be effective.
18 In the result, the jury found the respondent negligent. However, it is unknown on what basis the jurors reached their decision. The damages awarded by the jury totalled $883,800, including $460,000 for non-pecuniary damages. On appeal, however, the verdict of the jury was set aside and the Court of Appeal ordered a new trial on the issue of liability as well as damages: (1993), 81 B.C.L.R. (2d) 39, 103 D.L.R. (4th) 473, [1993] 6 W.W.R. 647, 29 B.C.A.C. 1, 48 W.A.C. 1, 16 C.C.L.T. (2d) 65.
II. Relevant Statutory Provisions
Sale of Goods Act, R.S.B.C. 1979, c. 370:
17. Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description. If the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.
18. Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:
(a)where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, whether he is the manufacturer or not, there is an implied condition that the goods are reasonably fit for such purpose; except that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;
(b)where goods are bought by description from a seller who deals in goods of that description, whether he is the manufacturer or not, there is an implied condition that the goods shall be of merchantable quality; but if the buyer has examined the goods there is no implied condition as regards defects which such examination ought to have revealed;
(c)an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; and
(d)an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it.
III. Judgment of Court of Appeal (1993), 81 B.C.L.R. (2d) 39
19 After a review of the evidence, including an exhaustive review of the evidence of standard practice, the court noted that the law was well established that "physicians are required to conduct themselves at least in accordance with the standard of their professional peers, but they are not expected to guarantee the success of their procedures or the perfect safety of their patients" (p. 61).
20 With respect to the negligence claim, the Court of Appeal distinguished between two aspects of the defendant's practice:
(1)the conduct of the AI procedure which reflected the current state of knowledge as to the risk of transmission of HIV involved in the use of that procedure;
(2) the screening and follow-up of donors.
21 With respect to the first aspect of the case, the court stated (at p. 67):
Thus, it is apparent that for the Defendant to be found liable on this part of the case, it would be necessary for the jury to be satisfied that the Defendant failed to have the knowledge and understanding expected in accordance with the standards of his profession. That, of course, was a question for the jury, and it was essential that the jury be carefully instructed upon the standard they should apply in deciding whether the Defendant was guilty of negligence. [Emphasis added.]
22 The court doubted that it could reasonably be found that the defendant was negligent in using fresh semen. It found, however, that the instructions to the jury were deficient in that the trial judge instructed the jury that it was open for them to find the general practice itself was negligent. In this regard, the court stated (at p. 73):
The only proper instruction to be given on at least a part of the case was that the jury should decide whether the Defendant conducted himself as a reasonable physician would in similar circumstances. In our judgment, that required the jury to confine itself to prevailing standards of practice.
The Court of Appeal also stated (at p. 74):
It was not possible on the evidence for the jury to find that it was negligent of the Defendant not to have known of the risk of HIV by AI and that he should have ceased performing AI. That was the principal argument of the Plaintiff and it may be the ground upon which the jury based its finding of negligence. If that is the case the verdict cannot stand.
23 With respect to the second aspect of the defendant's practice relating to the screening and follow-up of donors, the Court of Appeal stated (at p. 69):
What is more significant is that the Defendant made specific enquiries about homosexuality, not out of concern about HIV or AIDS, but because he regarded such persons as higher risks for the more common STDs. As a result of his initial enquiry, he felt confident in assuring the Plaintiff that her donor was not a homosexual person. A follow-up interview, or closer questioning, may or may not have disclosed that the donor was bisexual.
...
Keeping in mind that infection in a donor could be a "day-to-day" thing as described by Dr. Mascola, and that lifestyle changes can occur quickly, it was necessary for the jury to consider whether the Defendant's screening procedures were deficient. Again, of course, it was essential that the jury be given a proper instruction on the principles governing such matters. [Emphasis added.]
24 With respect to the instructions on this aspect, the Court of Appeal stated (at p. 73):
On the other part of the case, relating to the screening of donors, and follow-up interviews, the case is not so clear because less scientific questions are involved. In addition, we have identified some overlap between the two parts of the case. Screening homosexual persons out of an AI program because of their believed greater risk of infection was recognized by the Defendant as a desirable aim. The elimination of this particular donor for any reason would have protected the Plaintiff from HIV. It must be remembered, however, that it was impossible to guarantee safety because an inaccurate answer or a changed lifestyle after one or more follow-up interviews could have left the Plaintiff exposed to infection. There is no evidence suggesting that donors should be interviewed by the responsible physician before every donation.
On the other hand, if the jury found that the Defendant breached this duty of care to the Plaintiff then she may have an actionable claim against the Defendant because a defendant cannot always escape liability even though he does not foresee all the specific harm his patient may suffer from such a breach.
25 The court concluded that it was impossible to determine whether the jury found the respondent negligent on the first or second aspects of the defendant's practice. On the evidence, it was not available to the jury to find that the respondent ought to have known of the risk of HIV by AI. However, the trial judge charged the jury in this manner and it may have been the basis upon which the jury found negligence. Therefore, the verdict could not stand. A new trial was ordered on the issues other than those based on the first aspect of the case.
26 With respect to the sale of goods issue, the court assumed without deciding that there was a sale of semen. The trial judge instructed the jury to decide whether the contract between the parties was primarily for the sale of a good or whether it was a contract for services. Since the jury decided that it was not a sale of goods, the Sale of Goods Act did not apply. The court held that there was evidence upon which a jury could conclude that the arrangement was primarily one for professional services.
27 However, that did not resolve the issue of whether there should be an implied warranty at common law for the provision of medical services which included a good. The jury did not decide this issue because the trial judge instructed the jury that the warranty essentially amounted to the same thing as negligence. The court did not wish to go as far as to say that a physician would only be liable in warranty at common law if there was negligence in failing to detect or remove a defect in the good. Instead, the court was of the view that this was not a proper case for the implication of a warranty. In its opinion, it is a question of fact in each case whether the circumstances are sufficient to exclude common law warranties. It therefore dismissed this claim.
28 The court next considered the respondent's argument that the award of $460,000 for non-pecuniary damages, in excess of the rough upper limit prescribed by the Supreme Court of Canada, was inordinately high. It held that it was reasonable for the trial judge not to have instructed the jury on a rough upper limit when neither counsel had asked for such a charge. However, this did not mean that the appellant's damages should not be properly assessed in light of the jurisprudence. Relying on Lindal v. Lindal, [1981] 2 S.C.R. 629, the court concluded (at p. 87):
While recognizing that the [appellant's] injuries are markedly different in kind from those under consideration in the trilogy, we cannot conclude that the principle adopted by the Supreme Court of Canada, aimed at controlling the social burden of damage awards, should not be applied in this case. It follows, in our view, that the [appellant's] non-pecuniary damages cannot exceed the adjusted rough upper limit.
29 It was held that, although the trial judge did not err in his instruction to the jury, if the damages exceed the rough upper limit, the Court of Appeal must correct the award in conformity with the governing principles. Since there was to be a new trial on liability, the court was of the view that there should also be a new trial ordered on the question of damages generally.
IV. Issues
1.Did the Court of Appeal err in holding that the trial judge ought not to have charged the jury that, even if the respondent conformed to standard medical practice, it was open to the jury to find that the prevailing medical practice with respect to the AI procedure was negligent?
2.Did the Court of Appeal err in rejecting the appellant's claim based on a warranty under the Sale of Goods Act?
3.Did the Court of Appeal err in holding that a warranty of quality or fitness should not be implied under the common law, in the circumstances of this case?
4.Did the Court of Appeal err in holding that the rough upper limit on non-pecuniary damages applies in the present case?
5.If the rough upper limit of non-pecuniary damages applies in the present case, must the jury be instructed accordingly or should it be left to the Court of Appeal to adjust a jury award which exceeds the limit?
V. Analysis
A. Professional Negligence
30 I agree with the Court of Appeal that there are two aspects to the claim of professional negligence:
(1)breach of duty arising from the failure to be aware of the risk of HIV infection through the use of AI; and
(2)breach of duty with respect to the screening and follow-up of donors.
31 The alleged departures from the applicable standard of care were:
(1)in respect of the first aspect, failure to discontinue the practice of AI or, in the alternative, to warn the patients of the risk;
(2)in respect of the second aspect, the failure to adequately screen donors so as to eliminate those in a high risk category with relation to the transmission of STDs and to re-interview donors periodically to detect changes in lifestyle. There is also the claim that frozen semen rather than fresh semen should have been used.
32 In order to properly address the issues relating to professional negligence, it is useful to consider what were the matters which the jury was obliged to decide. In each aspect of the claim the jury was bound to consider whether the evidence established that a standard of practice existed. If the answer was in the affirmative, the next question was whether the defendant conformed to that practice. An affirmative answer to this question would result in a finding of no negligence in favour of the respondent unless the jury was entitled to consider and hold that the standard practice was itself below the required legal standard and that conduct below that standard constituted negligence. Similarly, if the jury found that no standard practice was established by the evidence, the appellant would have failed to prove her case unless the jury was entitled to fix the standard without the necessity of expert evidence. Finally, if the respondent failed to comply with the standard of care established by the evidence or by the jury, in the absence of or insufficiency of evidence, then the respondent would be found to be negligent.
(1) Standard of Care and Evidence of Standard Practice
33 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be asses