Latest Case Summaries – April 2014

Dickie v. Minett, 2014 ONCA 265 (C.A.) (CanLII)

This decision considered where a court can appropriately draw an inference of negligence from circumstantial evidence. The defendant extracted the plaintiff’s wisdom tooth. During the course of the procedure, the plaintiff’s jaw was fractured.

The plaintiff argued that the fracture gave rise to an inference of negligence  and that the defendant’s reliance on his notes and usual practice was insufficient to demonstrate the exercise of reasonable care. The trial judge found that the defendant was not negligent. The Court of Appeal dismissed the plaintiff’s appeal, holding that the plaintiff’s submission “amount[ed] to res ipsa loquitur without using that term.” The Court noted that there remain cases where circumstantial evidence can give rise to an inference of negligence that calls for an explanation by the defendant. However, in the case before it, the Court was satisfied that the trial judge had before him sufficient evidence to make the findings that he did. In particular, the Court of Appeal pointed to expert evidence that a patient’s jaw could break during surgery even with the exercise of reasonable care, and to the plaintiff’s particular risk factors. Read more on CanLII.

Gilbert v. South et al., 2014 ONSC 2431(CanLII)

The defendant brought a motion at the conclusion of trial for a determination that the plaintiff did not meet the threshold. The key dispute was with respect to causation of injuries. The trial judge noted the jury had awarded general damages of $70,000, future care of $57,250, damages for loss of housekeeping of $85,000, and loss of income in the amount of $255,000. He indicated that he was not bound by those findings of the jury, but would consider them as a factor. The trial judge noted that, if the impairments were in fact caused by the motor vehicle collision, they would constitute a permanent serious impairment of an important function. While the plaintiff had a significant pre-accident history of injuries and pain, he had been able to continue to work in a physically demanding job. The collision was relatively low impact, but still sufficient to cause the soft tissue injuries that, combined with the plaintiff’s pre-existing condition, caused significant and permanent impairments. The trial judge then noted that the jury’s significant future awards were consistent with his own findings, and that the jury award “coincided with and reinforced [the trial judge’s] own independently formed views”. Read more on CanLII.

Cases summarized by Rikin Morzaria, Partner at McLeish Orlando and Board Member of the Ontario Trial Lawyers Association.

Patrick Brown


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