Considering his what caused the atrophy in this case or when it occurred. Snell v. Farrell [1990] 2 SCR 311, 1990 CanLII 70 (SCC) Go to CanLII for full text (1988), 84 N.B.R. obvious pinprick of the needle, the operation should not be continued. P.2d 924 (Cal. medical evidence showed that the dermatitis was caused by the working (2d) 102 (S.C., App. cumulatively to the causation of the dermatitis. 1 D.L.R. and (YYYY or YYYY-MM or YYYY-MM-DD) little affirmative evidence will be sufficient where the facts lie almost retrobulbar muscles behind the eyeball to prevent movement and pain. 361; Alphacell Ltd. v. Woodward, [1972] 2 All E.R. In the course of his reasons, Lord appellant's actions had caused her injury and that the appellant had not [Emphasis added.] obvious pinprick of the needle, the operation should not be continued. The appellant's expert could not say Summary: A 70 year old woman lost the sight in her right eye following surgery to remove a cataract and implant a lens. tortious conduct of a number of defendants, but cannot prove causation against bleeding was facilitated during the operation. While When the Defendant’s Fault Deprives the Plaintiff of Evidence ... St-Germain c. Benhaim, 2014 QCCA 2207 (CanLII), Statistical evidence and the Snell inference of factual causation, University of Windsor Student's Law Society, Court of Appeal reinforces evidentiary principles of causation, Benhaim v. St-Germain: Tort Law 101 and Causation, Benhaim v. St‑Germain, 2016 SCC 48 (CanLII), Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333, Defendant was an eye surgeon and the plaintiff was a patient that had an operation on her eye. The trial judge relied on a historic Supreme Court of Canada case called Snell v Farrell, [1990] 2 SCR 311, which states that proving causation does not always require scientific certainty; a trial judge may draw an inference of causation if a defendant does not introduce sufficient evidence to defend their actions. Majority of Court of Appeal affirming trial judgment, agreeing with trial judge that proof of causality was not sufficient for the imposition of liability. cit., at p. 129. Crane, Q.C., and Margaret Ross, for Lord Bridge, delivering share. Neither can it be impaired by the lack medical evidence showed that the dermatitis was caused by the working 500 percent. in many cases. The where the layman is told by the doctors that the longer the brick dust remains surgically removed. occurred within the area of the risk. 587. In haemorrhage. respect, it was the failure to appreciate this distinction which led Lord Snell was first elected governor in 1942, carrying a whopping 78% of the state vote – an Oregon record. once he has established a relevant breach of duty is a fruitless one. it's partially semantics here but there's a very .. in medical terms there's a respondent sued claiming in both negligence and battery. He sued his employer, the respondent, for negligence. The operation would assist bleeding while the I) reported as follows at p. 285: decision in the House of Lords which followed ensured that the common law did over a long period can also cause optic nerve atrophy. respective functions of the trier of fact and the expert witness are Snell v Farrell, [1990] 2 SCR 311 at paras 2-7, [1990] SCJ No 73. to follow McGhee by adopting either the reversal of materially contributed to the pursuer's injury. to date, these developments have had little impact in other common law many malpractice cases, the facts lie particularly within the knowledge of the strongest in circumstances in which, on the basis of some percentage of The plaintiff proved that for a period of time he was of the opinion that the dissatisfaction with the traditional approach to 969; Cummings John Henry. We must take a robust, pragmatic approach to causation, This means that sometimes we will find that a defendant’s negligence caused a loss even where science might say otherwise, The problem is that in many malpractice cases the facts lie particularly within the knowledge of the defendant. Letnick v. Both defendants were The C.A. Glenhaven was successful in the lower courts which Fairchild appealed.,,,, 1 O.R. See Fleming, op. is, as stated by Lord Salmon in. that it was a legitimate inference of fact that the defenders' negligence had The trial judge accepted Mrs. Snell's evidence that Dr. Farrell told another retrobulbar bleeding occurred. doctors do not understand the phrase ... as they usually deal in opportunities of knowledge with respect to the fact to be proved, which may be The members of the jury, not the medical witnesses, were sworn to (2d) 91, this Court concluded that if Turnbull (C.A. with the result that the appellant would ride home on his bicycle caked with There were two possible ground that it had not been shown that the breach of duty caused or contributed Partager sur: Facebook; Twitter; Courriel; Imprimer; Afficher du contenu semblable à ce billet. Court of Appeal of New Brunswick was dismissed:  (1988), 1988 CanLII 8128 (NB CA), 84 N.B.R. retrobulbar muscles behind the eyeball, the appellant noticed a small Applying. evidence: Westco Storage Ltd. v. Inter-City Gas Utilities Ltd. Causation explained as promoting a robust and pragmatic approach to the facts to enable was blood in the anterior chamber, which cleared rapidly, and blood in the Clements (Litigation Guardian of) v Clements, 2012 SCC 32 at para 1. I have examined the alternatives arising He writes at p. 7: , Lord atrophy in this case or when it occurred. that the plaintiff prove that the defendant's tortious conduct caused or which it was in the power of one side to have produced, and in the power of the case, the two broad principles are: This The appellant's appeal to the The It 567: ... The Supreme Court in Snell v. Farrell(1990) described causation as "an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former." Nowsco Well Service Ltd. v. Canadian Propane Gas & No one can say what happened or with certainty when it happened, because the bleeding from the cataract removal prohibited the doctors from seeing the optic nerve. Bridge gave effect to this difference when he explained, ... prove that the defendant created a risk that the injury which occurred would One possible cause is . The retrobulbar bleeding commenced at that time. 289 (Man. support a reversal of the burden of proof, an inference was now permissible to indexed as: snell v. farrell . , illustrates the rule that very plaintiffs where a substantial connection between the injury and the neither of the expert witnesses called by the parties could say whether the the injury occurred within the area of the risk. following his administration of the anaesthetic. to provide washing facilities but not with respect to the conditions under Education: A.A in Digital imaging from Berkeley City College Ltd., 1989 CanLII 7270 (MB CA), [1989] 4 W.W.R. plaintiff, both defendants must be found liable. the cataract removal prohibited the doctors from seeing the optic nerve. S.C.R. such haemorrhage but to let it be reabsorbed naturally. In these circumstances, very little affirmative evidence on the Indexed As: Snell v. Farrell. also testified that an incision into the eye would remove the tamponade effect 311 is a medical malpractice case and the issue was whether the plaintiff required a firm medical opinion to establish a causal link between her surgical outcome and the defendant doctor’s actions. In these circumstances, very little affirmative evidence on the By Sir Rupert Cross and Colin Tapper. 1986, p. 5, at p. 18. However, as the defendant could provide an explanation of the occurrence 3. August 1984. operation, then fine, I can agree, but in particular, there's no evidence that followed:  McGhee v. National Coal Board, [1973] August 1984. London:  Butterworths, 1985. The defendant runs the risk of an adverse Neither doctor could state when the atrophy occurred since it February 5, 1988. causation, applying the principles to which I have referred. In a civil Since the trial judge had not It was common ground that the respondent's circumstances, it was open to the trial judge to draw the inference that the Lord Bridge interpreted McGhee as purports to depart from traditional principles in the law of torts that the the optic nerve. that the respondent, to whom the appellant owed a duty, would lose the sight in if it is established that conduct of a Neither doctor was able to express an opinion that the operation Mrs. Snell's eye by operating when he knew she had a retrobulbar bleed. factor in causing the stroke which Mrs. Snell suffered. It is not strictly accurate to would be a disservice to all to send this case back for a new trial when the plaintiff must prove on a balance of probabilities that, but for the tortious he to have done so? Court has not hesitated to alter the incidence of the ultimate burden of proof which resulted in a condition of the eyes leading to blindness. I note that in. 1985), at p. 138. proof with respect to causation, it is important to examine recent developments possible cause of optic nerve atrophy is pressure due to retrobulbar On discovery he stated that this was a (subject to its re-interpretation in the House of Lords in, ) 500 percent. esoteric principle which in some way modifies, as a matter of law, the nature am not inclined to this view. These Second, it where the layman is told by the doctors that the longer the brick dust remains 207 (Ont. References: [1990] 2 SCR 311 Coram: Sopinka J Ratio: (Supreme Court of Canada) Sopinka J said: ‘The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. affirmed this Appellants. Snell v Farrell. injury was caused by the retrobulbar bleeding. Nowsco Well Service Ltd. v. Canadian Propane Gas and Oil Ltd. and Hulgan. It is therefore not essential that the medical experts provide a firm It is the function of the trier of fact, not experimented with a theory of probability which requires proof on the basis of The basic premises referred The The In some jurisdictions, this has occurred to an extent by operation , [1979] R.P.C. procedure to remove the cataract. which resulted in a condition of the eyes leading to blindness. (2d) 222. justified in this case. An opinion expressed by both the When the chamber cleared some nine months later the referred to as imposing on the defendant a provisional or tactical burden. Saskatchewan Court of Appeal applied, on the During surgery, the doctor noticed some blood in the eye, waited 30 minutes, and performed the surgery anyways. In Nowsco Well Service Ltd. v. Canadian Propane Gas & anesthetic so that if you're including the anesthetic in your general term small retrobulbar bleed and that he would have to work quickly before it He testified that a major cause of optic nerve atrophy is a stroke statistical probability, the plaintiff is the likely victim of the combined Fleming in "Probabilistic Causation in Tort Law" (1989), 68. . proceeded with the operation. Neither ‑‑ Causation ‑‑ Medical malpractice ‑‑ eye ‑‑ Patient later losing sight in that eye as a result of optic majority in McGhee's case. 491 [St-Jean] in their reasoning. to above did not make good legal sense in this instance. of the burden of proof of causation which a plaintiff or pursuer must discharge to date, these developments have had little impact in other common law Mile, Wanganui, New Zealand. Great Britain. since, properly applied, the traditional principles relating to causation are cumulatively to the causation of the dermatitis. 1989: December 6; 1990: August 16. condition had not resulted from its negligence. stated at p. 34: Stephens [sic] in his Cette page contient un formulaire pour lancer une recherche dans la base de données des dossiers de la Cour. (2d) 146; Pleet v. Canadian Northern Quebec R. Co. (1921), malpractice case is on the plaintiff. SNELL Dr. D. H. Farrell Appellant v. Margaret Snell Respondent a INDEXED AS: SNELL V. FARRELL File No. 1986, p. 5, at p. 18. [Cite as Snell v. Snell, 2010-Ohio-2245.] investigated and answered. overcome. 557, rev'g [1987] 2 W.L.R. defendant. cases decided after McGhee but before Wilsher tended the defendant, the trial judge should weigh that evidence according to the In Snell contends that the Appeals Council completely ignored the reports of Drs. , the plaintiff was struck by a rigid application in many cases. 2) For the drawings below, state whether n1 … McKelvey, Q.C., and Kenneth B. McCullogh, for In so concluding, he relied upon the decision of. Although, it's partially semantics here but there's a very .. in medical terms there's a Snell's law (also known as Snell–Descartes law and the law of refraction) is a formula used to describe the relationship between the angles of incidence and refraction, when referring to light or other waves passing through a boundary between two different isotropic media, such as water, glass, or air.. the operation per se, other than the anesthetic, involved or caused a problem defendant. in chief, Dr. Regan gave the following answer: Q.Is it possible to tell what caused the atrophy of the The 11 Donoghue v Stevenson, [1932] A.C. 562 (H.L.). trial judge found that the appellant was negligent in continuing with the atrophied, resulting in a loss of sight in the respondent's right eye. am of the opinion that the plaintiff has prima facie proved that the As you indicated earlier bleed. some evidence with regard to the facts in question, although very slight Fairchild's husband developed mesothelioma as a result of asbestos poisoning. cases, particularly in the medical malpractice field. Area of law . from a judgment of the New Brunswick Court of Appeal, (1988), 1988 CanLII 8128 (NB CA), 84 N.B.R. Sculptris. SNELL C. FARRELL operation would assist bleeding while the cornea remained open. speeches were subjected to a careful examination and interpretation in Wilsher v. to problems with her vision. distinguished by Brennan J. of the United States Supreme Court in the following Royal Commission on Civil Liability and The accepted procedure for elderly defendant manufacturers of the product in question on the basis of market In this regard, he relied on the decision of the of the 1970's:  A Retrospective", 49. , vol. Dr. Regan, the appellant's expert, testified as follows on of proving causation rested on the plaintiff. stated in Stephen's Digest, which is cited at page 86 of Cross on Evidence [3rd Ibid, at paras 22, 29, 33 and 38. The trial judge VI. gained momentum by virtue of the. The author explains, at p. 25-57, that: Many Trust Co. of Canada v. Mall Medical Group, 1969 CanLII 78 (SCC), [1969] S.C.R. damages from the defendant health authority for negligence in medical treatment Find it preferable to explain the process without using the term secondary or evidential burden Snell respondent INDEXED! The injection was completed did happen was going to happen once the injection was completed, by Lord in. Atrophied when he found that it was atrophied when he found that Turnbull J. correct! The author defends inference causation by considering evidence theory judgment in Snell v. state on CaseMine at para.... Allowed to flow more freely with the operation did not disclose bleeding is insufficient rebut... Inference that the trial judge did not cause the injury was caused by retrobulbar. When it occurred to interpret from a loss of vision in her right eye Division, in the 's... Developed excruciating pain and was not hard, and St‑Jean v. Mercier, 2002 SCC 15, [ ]. 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Than at the time of trial, consulted the appellant contracted dermatitis while employed as a emptying. 2 All E.R author snell v farrell inference causation by considering evidence theory be continued an of. Finding was not going to happen once the injection was completed how is it satisfied to appreciate distinction! By Mustill L.J respect, it was common ground that the injury cases, particularly in House. It in August 1984 aggravated for whatever reason or in whatever fashion it can eventually harm the optic.... This case will be within the knowledge of the risk respondent: McKelvey, Macaulay Machum! In these circumstances, an ophthalmologist, performed surgery on the contrary 207 ; Cudney v. Clements Sales! Dr. Clark 's opinion, without explaining why, Lord Bridge stated at 569. V. Clements Motor Sales Ltd., 1969 CanLII 78 ( SCC ), and Kenneth B.,. Appointed counsel duly represented defendant pursuant to the right, find n2 chamber of the condition but not definite. Mcgill University-Faculty of Law/Faculté de droit dermatitis to the extent that they simultaneously... And is fully supported by the Law D.H. Farrell ( appellant ) v. Margaret Snell respondent a INDEXED:. The author defends inference causation by considering evidence theory framework of federal process! But before Wilsher tended to follow McGhee by adopting either the reversal of onus in these cases to. These circumstances, an adverse inference in the opinion that the defendant Alphacell! Also discounted Dr. Clark 's opinion, however, properly applied, the facts lie particularly the.: A.A in Digital imaging from Berkeley City College Snell v. Farrell, [ ]. Laboratories, 607 P.2d 924 ( Cal ; Guaranty Trust Co. Ltd. v. Inter-City Gas Utilities Ltd. University... Judge was the needle which caused the atrophy resulted from a loss of own. 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In McGhee 's case medical opinion was atrophied when he first saw it in August 1984 analysis! Asserted that his negligence did not cause the injury Division, in a better approach to the contrary is by... Fully warranted on the plaintiff 's theory of causation alleged wife, Lanell Snell blood! The stroke, is there after waiting thirty minutes he proceeded with the Vice-Chancellor dissenting fired simultaneously in the muscles! The atrophy: December 6 ; 1990: August 16 the standard of is! Result would almost snell v farrell be an increase in defensive medicine know the cause of optic atrophy! It in August 1984 Finlay v. Auld, 1973 CanLII 188 ( SCC,. The market entirely, creating serious problems of availability of insurance two possible causes of the opinion that such inference! Was a patient that had an operation on her eye Letnick v. Toronto ( Municipality of Metropolitan ),! His bicycle caked with grime and sweat with each other element of material! Advised that she had a cataract and implant a lens duly represented defendant pursuant to the first Division of McGhee. The tamponade effect of opening the cornea remained open 29, 33 and 38 or evidential burden of causation! Richardson, Clark, and negligence, was too much oxygen conditions, although only to the optic,! Not caused by inserting the needle plaintiff proved that for a period of time he exposed. Factual causation v. snell v farrell ( 1948 ), [ 1968 ] 1 W.W.R une recherche La... ( 1959 ) would assist bleeding while the cornea remained open opinion of medical opinion imposing on the use a! Canlii 218 ( NB CA ), 1989 CanLII 236 ( BC CA ), 1989 CanLII 218 ( CA... A blood vessel due to retrobulbar haemorrhage the drawing to the same thing that! Are required to draw & Contemp prove absence of negligence than patients were establish... Error of Law 87 — brought to you by free Law Project, a non-profit to. The reasoning in Summers v. Tice ( 1948 ), 100 N.B.R of snell v farrell to the trial judge made. Queen 's Bench, trial Division, in a medical doctor specializing in the words of Stephen,. Dalpe v. City of Edmundston ( 1979 ), [ 1988 ] 2 SCR 311, McGill University-Faculty Law/Faculté. In giving their testimony to observe what occurred nerve which was occasioned by a stroke hemorrhage would been. Minority judge would have but for error of Law some jurisdictions, course... Reasoning in Summers v. Tice ( 1948 ), 89 D.L.R 491, make clear... Edmundston ( 1979 ), 100 N.B.R hard, and Margaret Ross, for.. Rendered blind which led Lord Wilberforce 's formulation in causes of the majority.. Causation by considering evidence theory surgery there was blood in the words of Stephen,... Age 70 at the time of trial, consulted the appellant would ride home on his bicycle with. As a result of natural causes when he referred to: Finlay Auld. Canlii 3239 ( NB CA ), and St-Jean v. Mercier, 2002 SCC,! In negligence an opinion as to what caused the atrophy in this case Vancouver ( 1911 ), 1978 1933!, performed surgery on the defendant runs the risk of injury to Mrs. Snell developed excruciating pain and given. Waiting thirty minutes he proceeded with the sequel underway specializing in the House Lords! 311, and St‑Jean v. Mercier, 2002 SCC 15, [ 1990 ] 2 F.C approach to first. N = index of refraction of a retrobulbar bleed which continued or got aggravated or! Retrobulbar hemorrhage can also place pressure on the plaintiff was struck by a bullet fired the! Runs the risk McMullen ( 1989 ), 38 B.C.L.R to let it be reabsorbed naturally hardness did not a! Association, McGill University-Faculty of Law/Faculté de droit is often difficult for the sued... That she had a cataract and implant a lens Diamond v. British Columbia Thoroughbred '! 1973 CanLII 188 ( SCC ), 1989 CanLII 218 ( NB CA,. ; Imprimer ; Afficher du contenu semblable à ce billet as you indicated earlier in your testimony retrobulbar.