Date: Mon, 30 Apr 2007 00:04

From: David Cheifetz

Subject: Chester v Afshar (HL) in Canada

Dear Colleagues

Martin v. Capital Health Authority, 2007 ABQB 260 (CanLII)

This seems to be Canada's first reported application of Chester v Afshar (I haven't looked too hard) in an informed consent medical malpractice action alleging failure to properly inform of a material risk (a stroke) of the operation. The judge refused to allow the defendant to prove that P would have had the operation a short time later, in any event, and held whether or not P would have is irrelevant to both causation and the assessment of damages. The trial judge said it was entirely a but-for issue and but-for was established once the judge accepted that P would not have had the operation when he did if properly informed. The risk that manifested had a 5% chance of occurring even if the operation was done properly. It manifested. No suggestion of negligence. Reading between the lines it seems very clear that P would have had the operation a few months later. All he'd have done is postpone it until after an important family function. The judge didn't discuss Chester so we don't know if he realised that the English test on informed consent is subjective - I think he didn't for reasons you'll see; however, even if he didn't it's probably irrelevant to his analysis. There's no mention of Gregg v Scott, either.

Some of you might find the last 3 paragraphs interesting.

[122] I must make mention of the suggestion by the Defendant that the Court should disregard much of the applicable case law because, unlike other jurisdictions, in Canada our highest court has held that doctors are a peculiarly vulnerable class of defendants. The argument appears to be that such policy should not operate so as to modify the law in favour of plaintiffs. This seems to find its genesis in the remarks of one of the Law Lords, Lord Hope who gave a "policy reason" in his speech in finding in favour of the Plaintiff. Chester v Afshar, (supra), at ¶87.

[123] The Plaintiffs here do not suggest, and it is not necessary to suggest, that the law must be modified in any way in order for the Plaintiffs to succeed here. Causation will be made out, pursuant to Reibl v. Hughes (supra), in any case where a plaintiff establishes that a reasonable person in his position would have declined to proceed at that particular time. Applying this test, as I have done, the Plaintiffs are entitled to succeed, and the law need not be modified in any way, and not, in particularly, by a "policy". I do not see why it was necessary to refer to any such "policy" in the speech just referred to. The law that had already been described addresses the concern.

[124] The direction I give to counsel on this point is that in my opinion there is not "temporal" limitation on damages to be applied, and no reduction of damages to cover only the "gap" period as some counsel have chosen to describe the period between the actual operation and the hypothetical date when the Plaintiff might have agreed to undergo the surgery.

Good reading
David Cheifetz

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