Laferrière v. Lawson, [1991] 1 S.C.R. 541

Laferrière v. Lawson, [1991] 1 S.C.R. 541

Pf tries to extend loss of chance into the causation inquiry.

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  The trial judge dismissed the claim b/c there was no proof that the treatment the patient lost the chance to undertake would have had a positive effect on her health. The Court of Appeal reversed the decision and found that the def.’s fault resulted in the loss of a real and serious chance for the plt. from proper medical care. This decision was ultimately reversed by the SCC.
  
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  Plt. recovers a small amount for psychological suffering and the deprivation of the improvement of the quality of life caused by Dr’s fault. But, court holds that it is the cancer that ultimately caused pf’s death.
  
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  The Court held that the theory of loss of chance, at least as it is understood in France, should not be introduced into the civil law of Quebec in matters of medical responsibilities.
  
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  According to the traditional rule of civil responsibility (fault, causation and damage), there is no causal link b/w the doctor’s failure to follow up and the patient’s death.
  

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  Dissenting - LaForest J: recognises that in giving partial damages for loss of chance you are partially compensating the victim. Where problems of establishing causation exist, plt. aided in by presumptions (now arts. 2811, 2869 CCQ). Where a fault presents clear risk of harm and harm materializes, judge may presume causal link between fault and said injury.
  

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  Two principal schools of thought in France:
  

2. the effect of the loss of chance in the medical context is to undermine causality as an essential element of civil liability and therefore to be rejected as contrary to established principle.

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  The SCC stated that loss of chance is a type of damage. It is the damage which results form the loss of an opportunity either to realize a benefit or to avoid an injury.
  
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  The causal link is established b/w the fault and the final damage, and which the “intermediate” damage represented by the loss of chance may be mentioned in the course of the analysis, the courts’ preference is to follow the link through to its fullest extent. The damage is not the chance itself but rather the benefit unrealized or the injury unavoided.
  
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  Where such damage is a condition of civil responsibility (in the fault, causation and damage equation), the courts probably require proof on the balance of probabilities. Effectively, the damage is considered present and certain and, accordingly, the damages can be evaluated at their full value.
  
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  In cases where the responsibility has already been established regarding some concrete initial damage, and where the loss of a desired future result in an alleged consequence of the initial damage, then the court’s attention will properly be focussed on the real damage represented by the loss of the future result, and question of probability will only be considered, along with other relevant facts, in the evaluation of damages.
  
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  In both instances, it is the real damage and not the chance which is the preoccupation of the court.
  
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  Loss of chance in the medical context.
  
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  In these cases, the court is often placed in a situation where evidence is scarce and where the trial judge must rely on medical expertise, often presented in tentative or statistical form. Both of these factors lead themselves to clear difficulties in the establishment of the causal link and the assessment of damage.
  
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  There is a temptation to overcome these difficulties by removing the analysis of the case to a more abstract, statistical level.
  
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  In general, perhaps b/o less rigid rules regarding causation, Quebec courts focus on the actual damage which has occurred and the actual benefit which would have conferred.
  
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  By focusing on the outcome of the chance, the courts in Quebec ensure that the causal link b/w the fault and the actual situation now experienced by the plt. is established at least on the balance of probabilities.
  
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  Gonthier J didn’t think that the loss of chance could substitute the traditional approach in awarding the damage in Quebec, even in the classical sense.
  
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  It is only in exceptional loss of chance cases that a judge is presented with a situation where the damage can only be understood in probabilistic or statistic terms and where it is impossible to evaluate sensibly whether or how the chance would have been realized in that particular case. The purest example of such a lost chance is that of the lottery ticket.
  
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  Loss of chance becomes critically difficult when it is employed as a method of analysis in the complex cases of medical responsibility. In the most difficulty cases, such as the present case, the def. doctor’s fault cannot be easily attached even to any initial actual damage suffered by the plt. patient. Accordingly, it is analysis of the lost chance itself which will determine whether the doctor is at all responsible. The lost chance can be analyzed in two ways.
  
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  In France, it is the chance itself which is considered, usually described as a chance of recovery or survival.
  

-The damages are awarded in relation to the chance itself, and therefore such damages are only partial.

-loss of chance analysis is said to be appropriate in cases involving faults of omission; fault of commission must be analyzed according to a method which connects the fault to the actual death or sickness.

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  In Quebec, courts are more inclined to examine the damage which has already occurred, and to consider whether that damage was caused by the doctor’s fault or by other identifiable factors.
  

-Faults of commission are treated in the same manner as faults of omission.

-The judge attempts, in effect, to determine whether and to what extent the doctor’s acts and omissions are responsible for the situation in which the patient now finds himself or herself.

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  SUMMARY By Gonthier J
  
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  The court do not feel that the theory of loss of chance, at least as it is understood in France, should be introduced into the civil law of Quebec in matters of medical responsibility.
  
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  The general observations:
  

-Both acts and omissions may amount to fault and both may be analyzed similarly with regard to causation;

-Causation in law is not identical to scientific causation;

-Causation in law must be established on the balance of probabilities, taking into account all the evidence: factual, statistical and that which the judge is entitled to presume;

-In some cases, where a fault presents a clear danger and where such a danger materializes, it may be reasonable to presume a causal link, unless there is a demonstration or indication to the contrary;

-Statistical evidence may be helpful as indicative but is not determinative.

-Even where statistical and factual evidence do not support a finding of causation on the balance of probabilities with respect to particular damage (e.g. death or sickness), such evidence may still justify a finding of causation with respect to lesser damage (e.g. slightly shorter of life, greater pain).

-The evidence must be carefully analyzed to determine the exact nature of the fault or breach of duty and its consequences as well as the particular character of the damage which has been suffered, as experienced by the victim;

-If after consideration of these factors a judge is not satisfied that the fault has, on his or her assessment of the balance of probabilities, caused any real damage, then recovery should be denied.

Loss of Chance: Baudouin

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  In this case, it is not so much the actual loss which the court is seeking to compensate but rather the disappearance, b/o the occurrence of the fault, of the chance either to avoid a loss or to make a profit.
  
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  The theoretical difficulty is that the damage which is being claimed for is not only future but, by definition even, uncertain. No one can say with certainty whether the loss could have been avoided or the profit made if the fault had not occurred.
  
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  However, the courts, recognizing that merely being deprived of a possibility is a direct damage, have applied this concept.
  

e.g. 2: k-ual matters – when a lawyer whose services have been retained allows prescription to intervene and so loss the action which his client could have brought. In some cases, no one can say with certainty whether the client would have been successful and how much he might have been awarded. The court will compensate him, however, b/c the fault has extinguished all possibility of recovering his debt.

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  The courts have also applied this concept in a case where paramedical treatment caused an individual to loss the chance of improving his physical condition.