A $3.2 million personal injury award has been restored by our top court,the Supreme Court of Canada, helping to reinforce our modern approach to legal causation in medical malpractice cases(Ediger v. Johnston, 2013 SCC 18) and personal injury cases generally. Personal injury lawyers assisting the injured will applaud the clarity and brevity of this decision.
This win has given a British Columbia family the ability to care for their severely disabled child as the $3,224,000 damage award is sent back to the Court of Appeal for further consideration. Tragically, as result of sustained bradycardia from a negligent caesarean section delivery, the infant litigant suffered severe and permanent brain damage. She lives her life with spastic quadriplegia and cerebral palsy. She is non-verbal, tube-fed, confined to a wheel chair and totally dependent on others for all of her daily needs. Her life expectancy is 38 years.
The sole issue was whether the doctor’s breaches of the standard of care caused the infant’s injury. A lawsuit for negligence in Canada requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. The court can draw an inference against a doctor who does not introduce sufficient evidence contrary to that which supports the injury claimant’s theory of causation. In determining whether the doctor has introduced sufficient evidence, the court should take into account the relative position of each party to adduce evidence.
Here is a great summary of our current test for legal causation in civil cases, straight from the Supreme Court of Canada,
A. The Legal Test for Causation
 This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32,  2 S.C.R. 181. Causation is assessed using the “but for” test: Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7,  1 S.C.R. 333, at paras. 21-22. That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred: Clements, at para. 8. “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (ibid. (emphasis deleted)).
 Causation is a factual inquiry (Clements, at paras. 8 and 13). Accordingly, the trial judge’s causation finding is reviewed for palpable and overriding error (H.L. v. Canada (Attorney General), 2005 SCC 25,  1 S.C.R. 401, at paras. 53-56).
Truly one of the finest, first rate decisions in recent memory and a must read for lawyers. Watch my short video about proving medical malpractice cases. Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.