Causation in Medical Negligence Cases: But For Test and Material Contribution, Study notes of Law

Download Causation in Medical Negligence Cases: But For Test and Material Contribution and more Study notes Law in PDF only on Docsity! CAUSATION IN MEDICAL NEGLIGENCE CASES Peter M. Willcock and James M. Lepp, Q.C. 1 Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.2 INTRODUCTION In its most recent judgment on causation in a negligence case, Resurfice Corporation v. Hanke,3 the Supreme Court of Canada has summarised the principles arising from a long line of decisions on difficult causation issues. In doing so, the Court has reaffirmed the general applicability of the “but for” test for causation in negligence cases. That test, the test with which we are most familiar and comfortable, “constitutes direct application of the causa sine qua non theory”.4 The Court also acknowledged the necessity, in certain cases, of taking a “robust and pragmatic” approach to the evidence that is adduced in an attempt to meet that standard. The Court, however, has also recognised that there are exceptional circumstances in which the “but for” test cannot be applied without injustice and has described the circumstances in which the test ought not to be strictly applied. While the Supreme Court has been able to reassert the essential principles of causation in short simple terms, causation continues to vex trial and appellate courts across the country. That is particularly so in medical cases. As Khoury notes: One of the main benefits of modern life is derived from developments in medical science: but this field also still involves areas of great uncertainty. These uncertainties are reflected in instances of medical liability heard by the courts, 1 This paper was originally presented at the Continuing Legal Education Society of British Columbia’s course “Causation in Tort After Resurfice”held in Vancouver, BC on June 26, 2008. An earlier version of this paper was presented at the Canadian Bar Association’s National Health Law Summit, Critical Issues in Health Law on May 4, 2007. The writers are grateful to their colleague Una Radoja for her valuable research and comments. 2 Resurfice Corporation v. Hanke, 2007 SCC 7 at. para. 20. 3 Ibid. 4 Lara Khoury, Uncertain Causation in Medical Liability (Yvon Blais, 2006) at p. 18. - 2 - where they present tremendous hurdles as the parties and the courts attempt to shed light on the relevant events and undertake scientific inquiries into still uncertain areas of medicine in order to do so.5 This paper is an attempt to review the cases in which there has been significant departure from the strict application of the “but for” test in medical cases in particular. These appear to fall into three categories: 1. Those cases in which it has been argued that the “robust and pragmatic” approach to causation in medical cases, which is described in the Snell v. Farrell case, results in a shifting of the evidentiary onus to defendants. 2. Those cases in which plaintiffs have argued for damages for the loss of a chance of a better outcome. 3. Those cases in which it has been argued that causation in medical cases is established if the plaintiff has proven that negligence has materially contributed to the risk of injury. I. General Principles Causation is the relationship that must be found to exist between the tortious act of a defendant and the injury to the plaintiff in order to justify compensation of the latter out of the pocket of the former.6 The plaintiff has the burden of proving, on a balance of probabilities, that the defendant caused or contributed to the injury.7 Our Courts have consistently and recently reaffirmed that the general test for causation is that which requires the plaintiff to show that the injury would not have occurred “but for” the negligence of the defendant.8 The test requires the plaintiff to establish on a balance of 5 Ibid, at p. 4. 6 Snell v. Farrell, [1990] 2 S.C.R. 311 at para. 226. 7 Athey v. Leonati, [1996]3 S.C.R. 458 at para. 13; Snell v. Farrell, [1990] 2 S.C.R. 311 at para. 14; McGhee v. National Coal Board, [1972] All E.R. 1008 at 4 (H.L.). 8 McLachlin, J., summarised the problem in “Negligence Law - Proving the Connection” in Mullany and Linden eds., Torts Tomorrow, A Tribute to John Fleming (L.B.C. Information Services, 1998) at 18, stating: Why are the courts now asking questions that for decades, indeed centuries, they did not pose themselves, or if they did, were of no great urgency? I would suggest that it is because too oftenthat traditional “but for”, all - 5 - other, non-tortious, factors. The claim against the National Health Authority succeeded in the Court of Appeal. The majority applied the reasoning that served as the foundation of the judgment in McGhee v. National Coal Board, finding that the negligent care increased the risk of the eye condition that materialised and that it fell to the National Health Authority to disprove causation, which it could not do. Sir Nicolas Browne-Wilkinson dissented, finding that McGhee v. National Coal Board should not be applied in circumstances where there are both tortious and non-tortious causes of the injury, either of which would have been sufficient to cause the damages. The House of Lords agreed with Sir Browne-Wilkinson and dismissed the case. Lord Bridge noted that in certain passages in McGhee v. National Coal Board, the Lords had been careful to restrict the application of the case. Lord Bridge noted: The conclusion that I draw from these passages is that McGhee v. National Coal Board, [1973] 1 W.L.R. 1, laid down no principle of law whatsoever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders‟ negligence had materially contributed to the pursuer‟s injury.14 Our Supreme Court considered the principles addressed in McGhee and Wilshire and put another nail in the coffin of the argument that the burden of proof of causation in negligence cases should shift in cases where there is scientific uncertainty in its decision in Snell v. Farrell.15 In that case, the plaintiff underwent surgery that was not performed to an appropriate standard of care, following which he suffered a stroke and became blind. Neither the plaintiff‟s nor the defendant‟s experts could say with medical certainty whether the stroke that triggered the blindness was caused by the admitted negligence. There was no doubt that the negligence in surgery - producing in fact a retrobulbar bleed - increased the risk of stroke. The trial and appellate courts considered the English decisions and differed on the extent to which there could be said to be a shifting of the burden of proof of causation. At the Supreme Court of Canada, Sopinka J. described the principles that should be applied in addressing causation in 14 Wilshire v. Essex Area Health Authority, [1988] 2 W.L.R. 557 at 569. 15 Snell v. Farrell, [1990] 2 S.C.R. 311 at pp. 326 and 328. - 6 - circumstances where medical opinion evidence is an imperfect tool to establish or disprove a causal link between established breach of duty and obvious damages: 1. Causation need not be determined with scientific precision; 2. Factfinders are to take a “robust and pragmatic approach” to the facts relied upon by an injured person to support the conclusion that the misconduct of a defendant is a factual cause of his or her injury; 3. Where the relevant facts are particularly within the knowledge of the defendant “very little affirmative evidence will be needed to justify an inference of causation, in the absence of evidence to the contrary”; and 4. Factual causation is a question to be answered by the application of “ordinary common sense”.16 A portion of the judgment of Sopinka J. is often cited in arguments on causation. Mr. Justice Sopinka makes it clear in his judgment that the Court is describing circumstances in which inferences may be drawn from evidence properly adduced, rather than a shifting of the burden of proof in difficult causation cases. He notes “[t]his is sometimes referred to as imposing on the defendant a provisional or tactical burden”, and continues as follows: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield‟s famous precept. This is, I believe, what Lord Bridge had in mind in Wilshire when he referred to a „robust and pragmatic approach to the … facts‟.17 (emphasis added) Snell v. Farrell is a case in which the Court, as a result of evidentiary constraints, drew inferences from evidence before the Court. In drawing those inferences, the Court, in 16 Snell v. Farrell, [1990] 2 S.C.R. 311 at 328-30. 17 Ibid, at 330. - 7 - accordance with well-established principles, weighed the nature of the evidence that each party was likely to have been able to lead. The judgment has, accurately in our view, been described as an application of the evidentiary rules governing circumstantial evidence.18 Mr. Justice Sopinka clearly understood that such circumstantial evidence is often all that exists in medical cases and that medical defendants, like other professionals, are often in a better position to adduce evidence than are plaintiffs. He noted: In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.19 In a number of cases, courts have attempted to confine the application of the judgment in Snell to cases where there is circumstantial or prima facie evidence of causation and where no evidence has been led by the defendant. Mr. Justice Sopinka‟s judgment clearly contemplates such a restriction. In Moore v. Castlegar & District Hospital,20 the plaintiff established that the defendant doctor breached the duty of care owed to the plaintiff by failing to take appropriate spinal x-rays following a motor vehicle accident. At issue was whether the plaintiff‟s spinal cord injury occurred before or after the plaintiff‟s admission to hospital. Both parties led evidence on the issue of causation. The trial judge rejected the plaintiff‟s evidence on causation and accepted the defendant‟s evidence and the action was dismissed. On appeal, the plaintiff contended that the trial judge erred in failing to draw an inference, in the absence of affirmative x-ray evidence,21 that the defendant‟s spinal cord injury occurred after he arrived in the hospital. Hollinrake J.A. determined that, since expert evidence had been led on the causation issue, this was not a case in which the court could rely upon an inference of causation, as described in Snell: 18 David Cheifetz, “The Snell Inference and Material Contribution: Defining the Indefinable and Hunting the Causative Snark” (2005) 30:1 Advocates’ Q. 45. 19 Snell v. Farrell, [1990] 2 S.C.R. 311 at 328-329. 20 Moore v. Castlegar & District Hospital (1998), 49 B.C.L.R. (3d) 100 (C.A.) leave to appeal to S.C.C. ref’d (1998) S.C.C.A. No. 171. 21 Part of the physician’s breach of duty was that appropriate x-rays had not been taken. Had the x-rays been taken there would have been affirmative evidence, one way or the other, with respect to when the spinal cord damage occurred. - 10 - Dr. Martin was found negligent at trial for failing to properly test the mother for and exclude the diagnosis of herpes. However, the infant plaintiff‟s claim was dismissed on the basis that causation had not been proven. There were three possible periods during which herpes could have been acquired by the infant plaintiff in Martin: in utero; during birth; post-birth in the hospital nursery. Only if the Court could find that herpes was contracted during birth could it hold that Dr. Martin‟s negligence in failing to diagnose herpes and recommend birth by caesarean section, which the mother would have accepted, caused the injury. Each party called expert evidence on the issue of the medical degree of likelihood that the infant plaintiff contracted herpes during delivery. The plaintiff‟s expert opined that based on the fact that 90-95% of cases of neonatal herpes infections occur at the time of delivery, it was more likely that the infant plaintiff also contracted herpes during delivery. The defence‟s expert did not disagree with the plaintiff‟s expert‟s statistics, but concluded that specific facts made it more likely that the infant plaintiff‟s case fell in the exceptional category of cases in which herpes was contracted in utero or after delivery. The most significant fact favouring this conclusion was that the infant plaintiff‟s twin, who was delivered first and was thus exposed to hours of broken membranes and maternal genital secretions, had not contracted the virus. Having heard both experts‟ evidence, the trial judge concluded that there were two equally plausible theories of causation and that the infant plaintiff‟s case did not cross the necessary threshold of proof of causation on a balance of probabilities. On appeal, the infant plaintiff argued that the trial judge erred in failing to apply the robust and pragmatic approach in Snell to the issue of causation. The basis of the infant plaintiff‟s argument was that in the absence of “definitive medical proof on a balance of probabilities, it was incumbent on the trial judge to instead apply the Snell approach”.28 If she had applied Snell, the argument went, the trial judge would have concluded that Dr. Martin‟s negligence “materially contributed” to the risk that the infant 27 C.P.M. (Guardian ad litem of) v. Martin, 2006 BCCA 333. - 11 - plaintiff would acquire the virus during birth, amounting to proof of causation.29 The Court of Appeal disagreed with this argument, noting that the defence led ample evidence that the virus had not been contracted during delivery and that, based on that evidence, the trial judge concluded that the plaintiff failed to establish causation on a balance of probabilities. Snell, in the opinion of the Court of Appeal, did not stand for the proposition that, as the infant plaintiff‟s argument implied, a “tie means that the plaintiff succeeds or, to put it another way, that 50% equals 51%”.30 Further, in distinguishing the Martin case from the Snell case, the Court of Appeal noted: The defendant in Snell negligently failed to detect and treat a condition that might have led directly to the plaintiff‟s blindness in one eye. Dr. Martin did not cause the adult plaintiff to have genital herpes. He did not alter her physical condition. His negligence was his failure to pursue medical investigation that would have resulted in the correct diagnosis. Had he made the correct diagnosis, the risk of either twin contracting herpes during birth would have been lessened by resort to caesarean section, although some risk would have continued. But the question still remained as to whether the infant plaintiff contracted the virus during birth or as a result of one of the other possible causes. The expert evidence was directed to that question. … The ability of the medical experts in this case to render a subjective opinion as to the likely cause of the infant plaintiff‟s exposure to the virus was not obscured by anything done or not done by Dr. Martin.31 Another example of a defendant leading “evidence to the contrary” to prevent the drawing of an inference of causation from circumstantial evidence as per Snell is the case of Sam v. Wilson32. In Sam, the defendant doctor and provincial nurses were found negligent in failing to monitor Mr. Sam while he was taking certain medication with potentially serious side effects. The trial judge held that it could be inferred on the basis of Snell that the defendants‟ negligence caused Mr. Sam‟s liver failure. On appeal, the trial judge‟s finding of causation was overturned. 28 Ibid, para. 39. 29 Ibid, para. 41. 30 Ibid, para. 39. 31 Ibid, para. 56. 32 Sam v. Wilson, 2007 BCCA 622. - 12 - Mr. Justice Smith, speaking for the majority in Sam, held that because the defendant, Dr. Wilson, led expert evidence that proper monitoring (in accordance with hospital protocols) would not have likely disclosed the abnormally elevated liver enzymes at the time when such disclosure would have altered the outcome for Mr. Sam, there was no support for the finding that Dr. Wilson‟s failure to monitor Mr. Sam was a cause of his liver failure. This was, in the opinion of Smith J.A., “evidence to the contrary” to an inference that Dr. Wilson‟s negligence caused Mr. Sam‟s liver failure.33 Therefore, causation could not be proven on a “but for” test by resorting to a common sense inference on the basis of Snell. The initial consideration of McGhee and Wilshire in Canada, as reflected in the judgment in Snell v. Farrell, led to a refusal to shift the onus of proof of causation and a reiteration of the “but for” test. However, it also led to confirmation that the onus could be discharged, in appropriate cases, by little positive evidence. An inference of causation would be more readily drawn where the defendant did not call evidence on causation and even more readily drawn in cases where the defendants were uniquely qualified to lead such evidence but failed to do so. As can be seen from the decisions noted above, after Snell v. Farrell we all became more conscious of our obligation to lead evidence on causation of damages so as to avoid the invitation to draw inferences from circumstantial evidence. III. Loss of Chance In cases where the Court receives affirmative expert evidence addressing factual causation, there are particular problems that arise when error deprives the plaintiff of a chance of avoiding injury. Where there is a probability that a specific injury (either the whole or part of the plaintiff‟s damages) would have been avoided, but for the error of the defendant, the plaintiff is entitled to compensatory damages. Where there is some possibility of the avoidance of damage, that is less than a probability, the Courts have wrestled with the manner in which this “loss of a chance” should be addressed. 33 Ibid, para. 142. - 15 - injury to the hip. The plaintiff‟s evidence, at its highest, was that the delay in treatment was a material contributory cause. This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities. Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at a material contributory cause of the avascular necrosis, he failed on the issue of causation and no question of quantification could arise.38 Lord Bridge went on to hold that the case should not be decided as a loss of chance case, despite the fact that there was a “superficially attractive analogy” between the principle applied in such cases as Chaplin v. Hicks and “the principle of awarding damages for the lost chance of avoiding personal injury or, in medical negligence cases, for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment”.39 Lord Bridge held that “there are formidable difficulties in the way of accepting the analogy”.40 Lord Mackay shared Lord Bridge‟s view that there was a factual question for the trial judge to address, namely: What was the plaintiff‟s condition when he first presented to the hospital? Lord Mackay answered this question as follows: It is not, in my opinion, correct to say that on arrival at the hospital, he had a 25% chance of recovery. If insufficient blood vessels were left intact by the fall, he had no prospect of avoiding complete avascular necrosis, whereas if sufficient blood vessels were left intact on the judge‟s findings, no further damage to the blood supply would have resulted if he had been given immediate treatment, and he would not have suffered avascular necrosis.41 The damage had either already occurred, or it had not occurred. Like Lord Bridge, Lord Mackay was careful not to rule out the possibility that the Court could eventually consider loss of chance claims. He expressly held: I consider that it would be unwise in the present case to lay it down as a rule that a plaintiff could never succeed in proving loss of a chance in a medical negligence case.42 38 Ibid. at 913. 39 Ibid. at 913-14. 40 Ibid.at 914. 41 Ibid. at 915. 42 Ibid. at 916. - 16 - The loss of chance doctrine was carefully considered by the 1991 Supreme Court of Canada decision in Laferriere v. Lawson.43 The Laferriere case came on appeal from a judgment of the Quebec Court of Appeal, which had allowed an appeal from a trial decision dismissing an action for damages for medical negligence. The patient had undergone a biopsy and excision of a lump on her right breast. The pathology report indicated that the tissue sampled was affected by a carcinoma. The patient was not informed of the result of the biopsy and only learned that she suffered from cancer following the development of symptoms associated with metastases approximately four years later. She died seven years after the biopsy, after initiating an action but before trial. The trial judge concluded that the scientific evidence led at trial confirmed “the insidious and unforeseeable nature of the development of cancer, including the degree in duration of the suffering and hardship associated with such an illness”.44 She found that there was no causal link between late diagnosis and the plaintiff‟s death and the case was dismissed at trial. On appeal, there were three judgments and no clear resolution of the question of whether or not a claim for loss of a chance could be maintained in the civil law. There was some support for the view that French and Quebec law recognises such claims. The Supreme Court of Canada reviewed the civil law of France in detail and concluded its review with the observation that the courts in France appear to regularly employ loss of chance in medical cases. The Court then turned to the “limited doctrinal discussion of loss of chance in Quebec”. In addressing the cases, Gonthier J., for the majority, notes that Quebec Courts have typically required that causation be established on the balance of probabilities and that: In cases involving lost chance, it is not the chance itself - possible (as here) or probable - which is considered, but the outcome of that chance insofar as it bears on the patient‟s present condition. Where the loss of chance alone is considered to be the damage, it is theoretically consistent to admit possibilities as well as probabilities.45 43 Laferriere v. Lawson, [1991] 1 S.C.R. 541. 44 Quoted in Ibid. at 549. 45 Ibid. at 595. - 17 - This distinction is critical to the judgment of Justice Gonthier who, in addressing the loss of chance argument, deals with the theory: First in its classical applications as a type of damage or a method of evaluating damages, and secondly, in its more controversial application to medical cases where it is said to be an attenuation of the causal link.46 Classically, a loss of chance is regarded as damage that is “contingent, hypothetical or future and, accordingly, it is uncertain and difficult to evaluate”.47 Gonthier J. continues: 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 statistical terms and where it is impossible to evaluate sensibly whether or how the chance would have been realised in that particular case. The purest example of such a lost chance is that of the lottery ticket which is not placed in the draw due to negligence of the seller of the ticket. The judge has no factual context in which to evaluate the likely result other than the realm of pure statistical chance. Effectively, the pool of factual evidence regarding the various eventualities in the particular case is dry in such cases, and the plaintiff had nothing other than statistics to elaborate the claim in damages.48 Mr. Justice Gonthier refused to accept that medical conditions should be treated, for purposes of causation “as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery”.49 Further, in medical negligence cases, the damage has usually occurred, manifesting itself in sickness or death: The chance is not suspended or crystallised as is the case in the classical loss of chance examples; it has been realized and the morbid scenario has necessarily played itself out. It can and should be analysed by means of the generally applicable rules regarding causation.50 Gonthier J. sets out a most useful and lucid description of general principles of causation in the case: 46 Ibid. at 600. 47 Ibid. 48 Ibid. at 603. 49 Ibid. at 605. 50 Ibid. - 20 - entitles the innocent party to damages, albeit the damages may be only nominal, and the extent of his right will be limited by the rule in Hadley v. Baxendale … to what can be said to arise naturally, i.e. according to the usual course of things, or to be in the contemplation of the parties.54 The Court referred to Chaplin v. Hicks and other cases in support of the proposition that damages are recoverable in contract for the loss of a chance. The Court referred to Hotson and to Laferriere and noted: As to the latter, it was a civil law case which does not in any way address the implications at common law of a contract for medical services. Thus, it is not apposite.55 Hotson was distinguished as a case in tort. The Court then held: For the loss of chance approach to apply in this country in actions of tort would require either a legislative amendment or a decision to that effect of the Supreme Court of Canada.56 The majority concluded that the plaintiff could succeed, in contract, if he proved the loss of a chance of a better outcome. A new trial was ordered. In dissent, Mr. Justice Finch, as he then was, pointed out that the case had neither been pled nor tried as one for breach of contract and he would have dismissed the appeal. Madam Justice Southin, who wrote for the majority in the de la Giroday case, revisited the issue in dissenting reasons in Oliver (Public Trustee of) v. Ellison.57 After hearing argument on the question of whether or not there is a contractual relationship between physicians and patients in British Columbia, she concluded that there was such a contractual relationship. The case could, for that reason, be distinguished from Hotson and the plaintiff could recover damages associated with the loss of a chance of a better medical outcome. In her reasons, Madam Justice Southin did, however, note that her comments in the de la Giroday case respecting the contractual nature of the relationship between doctors and patients were obiter dicta and that her conclusion in Oliver 54 de la Giroday v. Brough, [1997] B.C.J. No. 1146 (C.A.), para. 34. 55 Ibid. at para. 40. 56 Ibid. at para. 42. 57 Oliver (Public Trustee of) v. Ellison, 2001 BCCA 359. - 21 - pertains to legislation in force at the time of the incident.58 That legislation was later amended. The majority in Oliver held that, as the contractual issue had not been argued at trial, it was not open to the Court to address the contractual claim and that, as a claim in tort, the action was bound to fail in the absence of evidence that, on the balance of probabilities, damages were caused by the failure to meet an appropriate standard of care. Having previously held that the Laferriere v. Lawson case was not apposite because it was founded upon the logic of the civil law, it is surprising that Madam Justice Southin did not refer in her decision in Oliver to Arndt v. Smith59 where Madam Justice McLachlin suggested that the logic in Laferriere may be applicable in common law provinces.60 The loss of chance argument came before the Supreme Court of Canada and was again addressed for the Court by Gonthier J. in St-Jean v. Mercier.61 In that case, the trial court found that the defendant orthopaedic surgeon had failed to immobilise a spinal fracture. The patient eventually developed spastic paraplegia arising from a medullary contusion. The Court held that “the likelihood of early immobilisation leading to recuperation” was “somewhere on the spectrum in between the poles of possibility and probability: greater than the realm of what is merely possible, but still not enough to meet the threshold of probability”.62 In that context, Gonthier J. held: It is worth repeating the traditional principle set out in Laferriere v. Lawson [1991] 1 S.C.R. 542, at pp. 608-9, where I found that causation must be established on a balance of probabilities and that a loss of a mere chance cannot be a compensable harm.63 58 Ibid, at para. 35. 59 Arndt v. Smith, [1997] 2 S.C.R. 539. 60 Ibid. at para. 43. 61 St-Jean v. Mercier, 2002 SCC 15. 62 Ibid. at para. 106. 63 Ibid. - 22 - Doubt with respect to the applicability of the judgments in St-Jean v. Mercier and Laferriere v. Lawson, in the common law provinces, has been addressed by the decision of the Ontario Court of Appeal in Cottrelle v. Gerrard.64 In that case, the plaintiff suffered a below-knee amputation as a result of gangrene due to a failure to ensure appropriate monitoring of the development of an infection. There was some expert evidence at trial that, with appropriate care, the plaintiff might not have suffered the loss of her leg, but no witness at trial was prepared to say that it was more likely than not that with proper treatment, the leg could have been saved. Despite that evidence, the trial judge found that the physician‟s failure to meet the standard of care “caused the infection to deepen and that such infection contributed to the development of gangrene which mandated the amputation”.65 On appeal, the finding of breach of duty was undisturbed. The trial judge‟s assessment of the evidence on causation was found to have been erroneous, however, and the judgment was set aside. The decision of the trial judge appears to have been based upon the description of the exceptions to the “but for” test in Athey (which will be discussed further below). The trial judge held that the loss of chance doctrine was not applicable. Despite the fact that it appears not to have been necessary to deal with the loss of chance doctrine in Cottrelle, the Ontario Court of Appeal held that “under the current state of the law, loss of a chance is non-compensable in medical malpractice cases”.66 In support of that proposition, the Court relied upon Laferriere v. Lawson, St- Jean v. Mercier and Hotson. The Court held as follows, despite the fact that the exclusion of recovery for the loss of a chance in medical malpractice cases has been criticised as being “unduly rigid and harsh”: Recovery based upon the loss of a chance would require substantial reduction of the damages to reflect the value of the less than 50% chance that was lost. In any event, the authorities cited [including Laferriere v. Lawson, St-Jean v. Mercier and Hotson] preclude us from considering such an award.67 64 Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.). 65 Cottrelle v. Gerrard, [2001] O.J. No. 5472 (Ont. S.C.J.), para. 72. 66 Supra note 64 at para. 36. 67 Ibid. at para. 37. - 25 - and suffered back and neck injuries in two motor vehicle accidents. When he engaged in rehabilitative therapy, he suffered a herniated disc. The defendants admitted liability for the injury caused by the motor vehicle accidents. The trial judge held that although the accidents were “not the sole cause” of the disc herniation, they played “some causative” role and awarded a percent of the global amount of damages assessed. When the case was heard by the Supreme Court of Canada, the issue was whether causation of damages had been properly addressed at trial and whether any reduction in damages had been appropriate. Mr. Justice Major restated the following basic principles of causation: 1. Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury; 2. The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant; 3. The “but for” test is unworkable in some circumstances, so the Courts have recognised that causation is established where the defendant‟s negligence “materially contributed” to the occurrence of the injury (in support of this proposition, the Court cited, among other cases, McGhee v. National Coal Board); 4. A contributing factor is material if it falls outside the de minimis range.77 Mr. Justice Major held that it has never been necessary for a plaintiff to establish that the defendant‟s negligence was the sole cause of an injury and the law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped to produce the harm. The Court held that this was not a “loss of chance” case and that the trial judge had not adopted a “loss of chance” analysis. Had she done so, however, she would have been wrong. The Supreme Court of - 26 - Canada held that if the trial judge had held that there was a 25% chance that the injury was caused by the motor vehicle accidents and a 75% chance that it was caused by the pre-existing condition, “causation would simply not be proven”.78 In that regard, the case is further useful, authority for those seeking to defend a “loss of chance” case. The Court held that the findings of the trial judge indicated that it was necessary to have both the pre-existing condition and the injuries from the accidents to cause the disc herniation. The accidents, although only contributing 25%, were the causa sine qua non of the disc herniation. It is, therefore, difficult to see why it was necessary for Mr. Justice Major to address the circumstances in which the “but for” test is unworkable. Nevertheless, it is the description of the circumstances in which the “but for” test is unworkable that has led Athey to become an often-cited and difficult case. The decision in Athey was revisited by Mr. Justice Major in Walker Estate v. York Finch General Hospital.79 The plaintiffs in that case contracted AIDS from blood and blood products supplied by the Canadian Red Cross Society before the development of antibody tests to detect the presence of HIV in donated blood. The Red Cross screening procedures included a questionnaire that was given to potential donors, which did not ask symptom-specific questions about HIV. The trial Court determined that the Red Cross Society had breached its duty of care in failing to ask symptom- specific and risk-specific questions of blood donors. The causation question was whether the infected donors would have been screened out of the program if they had been asked the appropriate questions. Mr. Justice Major held in Walker that in cases of negligent donor screening, it may be impossible to prove hypothetically what the donor would have done had he or she been properly screened. In such cases, the test of causation was not whether the CRCS‟s conduct was a necessary condition for the plaintiffs‟ injuries using the “but-for” test, but whether that conduct was a sufficient condition. In other words, the test is whether the conduct “materially contributed” to the occurrence of the injury outside the de minimis 77 Ibid. at para. 13-15. 78 Ibid. at para. 42. 79 Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647. - 27 - range.80 Interestingly, however, in Walker itself evidence was led before the trial judge as to what the donor in question would have done had CRCS followed proper procedures. The trial judge‟s conclusion was that the donor would not have been deterred from giving blood, despite his evidence to the contrary. On this basis, the trial judge held that causation was not established, not, as Major J.‟s reasons imply, impossible to establish. In this respect, the Court noted: In cases of negligent donor screen, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the CRCS (the Red Cross). The added element of donor conduct in these cases means that the but for test could operate unfairly, highlighting the possibility of leaving legitimate plaintiffs uncompensated. Thus, a question in cases of negligent donor screen should not be whether the CRCS‟ conduct was a necessary condition for the plaintiff‟s injuries using the “but for” test but whether the conduct was a sufficient condition. The proper test for causation in cases of negligent donor screening is whether the defendant’s negligence ‘materially contributed’ to the occurrence of the injury. In the present case, it is clear that it did. “A contributing factor is material if it falls outside the de minimis range.” (See Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 15). As such the plaintiff retains the burden of proving that the failure of the CRCS to screen donors with tainted blood materially contributed to Walker contracting HIV from tainted blood.81 [Emphasis added.] In this passage, the Court appears to require the Plaintiff to establish that the Defendant‟s negligence materially contributed to the occurrence of the injury. If the Plaintiff could do so, the “but for” test would be met. However, by noting that the application of the “but for” test would leave legitimate plaintiffs uncompensated, the Court suggests that that test is not being applied and that it is enough for plaintiffs to establish that negligence has materially contributed to the risk of an injury. The Court in Walker Estate specifically indicates that it was describing the test for causation “in cases of negligent donor screening”. This is clearly not meant to be a test of general application. Nevertheless, it raises the following questions: What are the 80 Ibid, para. 88 81 Ibid. at para. 88. - 30 - causation is impossible, considerations of fairness and justice may require relaxation of the conventional requirements for causation: Haag v. Marshall (1989), 39 B.C.L.R. (2d) 205 (C.A.); Snell v. Farrell, [1990] 2 S.C.R. 311 and Fairchild v. Glenhaven Funeral Services and others 2002 U.K.H.L. 22, All E.R. 305.91 Donald J.A. was clearly motivated by policy considerations in finding liability: Is it enough for liability that the terrible violence that occurred in this case might have been avoided even though the plaintiffs cannot raise the probability to more likely than not? In my judgment the right to police protection in these circumstances is so strong and the need for teeth in a domestic violence policy so great that the causal language must be found sufficient to ground liability. Contemporary authority, examined later, requires flexibility in rules of causation so that compensation for a wrong will be provided where fairness and justice require.92 In considering the authorities, Donald J.A. distinguished Cottrelle v. Gerrard and Laferriere v. Lawson on the grounds that in those cases, the experts were able to give evidence on the likelihood of the outcome had there been no breach of the duty of care. Hall J.A., with whom Smith J.A. concurred, held that the trial judge had properly dismissed the case. The “but for” test was held to be applicable. He considered, among other cases, the judgment of the English Court of Appeal in Fairchild v. Glenhaven Funeral Services Ltd.93 and noted as follows94: Lord Nicholls of Birkenhead, in his speech in Fairchild … set out what I consider to be a helpful analysis of why and when the normal „but for‟ test may not be appropriate: On occasions, the threshold „but for‟ test of causal connection may be over-exclusionary. Where justice so requires, the threshold itself may be lowered. In this way, the scope of a defendant‟s liability may be extended. The circumstances where this is appropriate will be exceptional, because of the adverse consequences which the lowering of the threshold will have for a defendant. He will be held responsible for a loss the plaintiff might have suffered even if the defendant had not been involved at all. To impose 91 B.M. v. B.C. (A.G.), supra at note 89, para. 10. 92 Ibid, para. 149. 93 Fairchild v. Glenhaven Funeral Services Ltd., [2003] 3 ALL E.R. 305 (H.L.). 94 B.M. v. B.C. (A.G.), supra at note 89, para. 131. - 31 - liability on a defendant in such circumstances normally runs counter to ordinary perceptions of responsibility. Normally this is unacceptable … Considerable restraint is called for in any relaxation of the threshold „but for‟ test of causal connection. The principle applied on these appeals is emphatically not intended to lead to such a relaxation whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging a burden of proof resting on him. Unless closely confined in its application, this principle could become a source of injustice to defendants. There must be good reason for departing from the normal threshold „but for‟ test. The reason must be sufficiently weighty to justify depriving the defendant of the protection of this test normally and rightly affords him, and it must be plain and obvious that this is so. Hall J.A. notes that cases where there have been exceptions to the rule, generally, are cases where “causality was nearly impossible to demonstrate because of the physical circumstances of the occurrence”. In separate concurring reasons, Smith J.A. held that the appeal should be dismissed because proof of causation “is not precluded by the limits of scientific knowledge”. In his judgment, there is a clear caution against relaxing the application of the “but for” test. The test should be relaxed only in rare cases where proof of causation to the traditional standard is impossible. To do otherwise is to offend the fundamental principle that the defendant is a wrongdoer only in respect of the damages that he actually causes to the plaintiff. In Trinetti v. Hunter, the trial judge had dismissed the plaintiff‟s claim on the grounds that while she had proven a breach of a building bylaw, she had not establish that the breach had caused her to slip and fall and suffer injury.On appeal, the unanimous Court of Appeal adopted the reasoning of Smith J.A. in B.M. v. B.C. (A.G.) to the effect that the application of the “inference principle” of causation is “restricted to rare cases where it is clear that the defendants controlled all possible physical agents of harm and it is impossible to identify scientifically the pathogenesis of the harm and, therefore, to attribute precise responsibility for the harm as between the tortious acts of several defendants or as between one defendant‟s tortious and non-tortious acts”95. 95 B.M. v. British Columbia, supra at note 89, para. 153. - 32 - In the more recent trial decision in Seatle (Guardian ad Litem of) v. Purvis,96 Garson J. relied upon Cottrelle v. Gerrard in dismissing a medical negligence claim where the plaintiffs failed to establish causation on a balance of probabilities. The plaintiffs argued that the family physician, found to have been negligent in not calling in the obstetrician for a difficult delivery, caused the injury to the infant because it was more probable than not that the presence of a specialist would have resulted in a quicker delivery and avoidance of the injury. The plaintiffs argued that they had met the “material contribution” test established in Athey v. Leonati by demonstrating a material risk of harm and that the harm, in fact, materialised. The Court described the existing Canadian causation jurisprudence in the following fashion: I conclude from reviewing these authorities that there are four possible theories of causation available to this plaintiff. At the risk of oversimplification, I would summarize these theories as follows: 1. The plaintiff must prove that “but for” the negligence of the defendant no injury would have occurred. This test should not be applied too rigidly, which means that an inference of causation may be made even in the absence of conclusive, precise, scientific evidence (Snell). 2. Where there are multiple possible causes of an injury, but the plaintiff can prove the defendant‟s negligence materially contributed to the injury, liability for the whole loss, subject to claims of contribution, will attach to the defendant (Athey). 3. If the plaintiff can establish that the defendant materially increased the risk of a specific injury, and that specific injury occurs, the court may infer on a sufficient evidentiary basis that the material increase in risk was a contributing cause of the injury such that causation is established (Levitt, Webster). “The evidence is to be applied according to the proof which it was in the power of one side to have produced.” (Snell). 96 Seatle (Guardian ad Litem of) v. Purvis, supra at note 71. - 35 - the case was one that called for the application of a robust and pragmatic approach to causation, but held that even taking that approach, the plaintiff had not met the “but for” test and that no other test was appropriate. Where the “but for” test is unworkable and where justice requires the application of a different standard: “The plaintiff need show only that the defendant‟s conduct materially contributed to the occurrence of the injury” (para. 49). The Court noted that the decision in Athey: “Provides little guidance as to where the „but for‟ test is unworkable and ought to be replaced by the „material contribution‟ test” (para. 52). After referring to the decision in Cottrelle, the Court held: Thus, it would seem that the material contribution test is applied to cases that involve multiple inputs that all have harmed the plaintiff. The test is invoked because of logical or structural difficulties in establishing „but for‟ causation, not because of practical difficulties in establishing that the negligent act was part of the causal chain. The Court went on to point out that the robust and pragmatic approach to the evidence is not a distinct test for causation. The majority allowed the appeal and set aside the finding that the plaintiff‟s injury was caused by the defendant‟s negligence. In 2007, the Supreme Court of Canada again addressed causation in Resurfice Corp. v. Hanke.101 The plaintiff in Resurfice operated an ice-resurfacing machine and was badly burned when hot water overfilled the gasoline tank releasing gasoline and causing an explosion. He sued the manufacturer and the distributor of the machine. He lost at trial, on the basis that neither negligence nor causation had been proven. The trial judge applied the “but for” test to the causation analysis. The Alberta Court of Appeal held that it had been an error to do so and that the “material contribution” test ought to have been applied. The Supreme Court was called upon to clarify the circumstances in which the “material contribution” test should be applied. The Court held: 100 Ibid, para. 71 101 Resurfice v. Hanke, supra at note 2. - 36 - The Court of Appeal erred in suggesting that where there is more than one potential cause of an injury, the „material contribution‟ test must be used. To accept this conclusion is to do away with the „but for‟ test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal‟s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with the Court‟s judgment in Snell v. Farrell … Athey v. Leonati … Walker Estate v. York Finch General Hospital … and Blackwater v. Plint …102 Delivering the judgment for the Court, the Chief Justice reiterated, the opinion that the “basic test for determining causation remains the „but for‟ test” and that it “applies to multi-cause injuries.”103 In describing the limited applicability of the material contribution test, the Court held: However, in special circumstances, the law has recognized exceptions to the basic „but for‟ test and applied a „material contribution‟ test. Broadly speaking, the cases in which the „material contribution‟ test is properly applied involved two requirements. First, it must be impossible for the plaintiff to prove that the defendant‟s negligence caused the plaintiff‟s injury using the „but for‟ test. The impossibility must be due to factors that are outside of the plaintiff‟s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff‟s injury must fall within the ambit of the risk created by the defendant‟s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the „but for‟ test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a „but for‟ approach.104 The decision in Resurfice makes it clear that the “material contribution” test is not simply the application of the “but for” test to cases where there are multiple causes of a loss, each of which, on the evidence, could be said to have materially contributed to the injury. The Court appears now to be clearly describing a test which is a departure from the “but for” test and which requires only proof that negligence materially contributed to 102 Ibid. at para. 19. 103 Ibid. at para. 21. 104 Ibid. at paras. 24-25. - 37 - the risk of an injury. On the other hand, the application of the “material contribution” test appears to be restricted to a very narrow range of cases and, on the basis of the judgments in St-Jean v. Mercier and Laferriere v. Lawson, there is room to argue that the “material contribution” test should rarely, if ever, be applied in medical malpractice cases. The British Columbia Court of Appeal considered the Resurfice decision in Jackson v. Kelowna General Hospital.105 The patient, Jackson, suffered a broken jaw in a bar fight and underwent surgery to repair the fracture on the following day. An anaesthesiologist ordered that a patient-controlled analgesia system be provided to the patient in order to allow him to self-administer Morphine. He was to have been regularly monitored thereafter. He later brought an action alleging that he suffered a brain injury as a result of a breach of the standard of care for post-operative monitoring. The trial judge found that the nurses had breached the appropriate standard, but that the patient had failed to prove that the breach caused his injuries. In fact, the plaintiff led no evidence as to what the nurses would have discovered had they not failed to monitor him during the critical period106. On appeal, it was argued that the standard of proof of causation should be relaxed on policy grounds because the facts lay particularly within the knowledge of the defendants and because factors outside the plaintiff‟s control made it difficult to prove causation. The British Columbia Court of Appeal held that Resurfice had articulated the “special circumstances” where the “material contribution” test may be applied and that there was no reason for relaxing the standard of proof of causation in the case on appeal. The Court clarified that the “material contribution” test should only be applied: …to cases where it is truly impossible to say what caused the injury, such as where two tortious sources caused the injury, as in Cook v. Lewis, [1951] S.C.R. 830, or it is impossible to prove what a particular person in the chain of causation would have done in the absence of the negligence, such as the blood donor cases (Walker Estate v. York Finch General Hospital, [2001] 1.S.C.R. 647).107 105 Jackson v. Kelowna General Hospital, 2007 BCCA 129. 106 Ibid, para. 11-12. 107 Ibid. at para. 22. - 40 - Further, because the defence counsel adduced scientific evidence which indicated that the delayed diagnosis increased the risk of harm by 20% only, while clearly not obligated to do so, the defence had, in fact, disproved causation.113 In these circumstances, it was clearly inappropriate for the trial judge to even consider the material contribution test. Even if the defence had not been able to “disprove causation”, the reasoning of the Court of Appeal makes it clear that the Resurfice decision would not provide assistance to the plaintiff because expert evidence on the issue of causation was available and was led at trial. Resurfice, in the opinion of the Court, did not stand for the proposition that mere inability to prove causation on a “but for” basis meant that resort may be had to the less stringent “material contribution” test.114 In coming to its conclusion in Bohun, the Court of Appeal relied on its previous decision in B.S.A. Investors Ltd. v. DSB115. In B.S.A., the issue was whether the defendant‟s negligence caused a fraud to be perpetrated on the plaintiff. Because the question of what the outcome would have been, had the defendant not been negligent, could be answered with certainty only by the fraudster himself, who did not take the stand in his own defence, the Court considered whether it was impossible to prove causation on a “but for basis”, thus permitting resort to the “material contribution” test. Contrary to the opinion of the trial judge, the Court of Appeal concluded that it was not116: With respect, I do not consider this to be one of those “rare cases” where such an inference should have been drawn. The case did not involve principles of causation unknown to modern science; there may have been no direct evidence on point, but the trial judge was still able – and indeed required – to use the available circumstantial evidence in order to decide the point. The B.S.A. decision makes it quite clear that only in cases where it is truly impossible to prove causation, such as where the limits of scientific knowledge prevent the possibility of proof, can a plaintiff rely on the “material contribution” test. A lack of evidence 113 Ibid, para. 52. 114 Ibid, paras. 49-53 115 B.S.A. Investors Ltd. v. DSB, 2007 BCCA 94. 116 Ibid, para. 41. - 41 - (B.S.A.) or a lack of favourable evidence (Bohun) does not displace the normal “but for” test of causation. The Alberta Court of Queen‟s Bench has also considered the judgment in Resurfice in Tonizzo v. Moysa 2007 ABQB 245. The plaintiff alleged that the defendant physicians had been negligent in failing to diagnose reflex sympathetic dystrophy. The Court held that the plaintiff could not establish causation of damages. An invitation was made to apply the “material contribution” test in response to which the Court held as follows: In certain exceptional cases, the „but for‟ test of causation does not apply. Such cases require that: (i) it be impossible for the plaintiff to prove that the defendant‟s negligence caused the plaintiff‟s injury using the „but for‟ test; and (ii) it be clear that the defendant breached a duty of care owed to the plaintiff, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff suffered that form of injury: Resurfice Corp. at para. 25. These requirements are not met in this case, as it was not impossible in principle, in the sense in which the Supreme Court of Canada uses the term „impossible‟ for Mr. Tonizzo to prove that Dr. Moysa‟s care caused his injury. Rather, Mr. Tonizzo claim fails simply for lack of evidence of a causal connection. The absence of evidence (as opposed to the impossibility of obtaining evidence) is not a basis to apply this exceptional test of causation). The Court of Appeal for Ontario also discussed the “material contribution” issue in Barker v. Montfort Hospital.117 This was an appeal from a decision that the defendant surgeon ought to have attended to assess a patient during a period when her condition was deteriorating and that doing so would have led to earlier diagnosis and surgical treatment. The trial judge found that the patient had suffered loss of a portion of her small intestine as a result of the late diagnosis. There was an appeal from both the finding of a breach of the standard of care and the finding on causation. The causal issue was whether the volvulus which led to strangulation of a portion of the bowel had already developed before the assessment ought to have been done. The majority of the Court found that there was “no expert or other evidence on which the trial judge 117 Barker v. Montfort Hospital, 2007 ONCA 282. - 42 - could base his finding that if the appellant had attended at the hospital late in the evening…and had decided to operate, the section of bowel would likely not have had to be removed”.118 Significantly, the majority of the Court found that evidence as to causation could have been led. The Plaintiff could have addressed causation by proving “when the full volvulus likely formed and assuming that the bowel would have died approximately eight hours later”.119 As a result, when asked to consider the Resurfice case, the Court held that the case had no application because: “the respondents have not shown that it was impossible to prove that the delay in carrying out the operation caused Mrs. Barker‟s injury on a balance of probabilities”.120 The evidence that had been led was unfavourable to the Plaintiff. The Court of Appeal applied the “but for” test, found the Plaintiff‟s case wanting and dismissed the claim. In dissent, Weiler J.A. held that the trial judge was entitled to draw an inference of causation (as suggested in Snell), and that the Court of Appeal should treat that inference with deference. Further, however, Weiler J.A. observed that the Appellant himself submitted that it was impossible for the Respondent to prove that but for the delay in operating she would not be suffering from "short-bowel syndrome".121 Weiler J.A. rejected that submission, finding that causation could be proven with the aid of a “robust and pragmatic” approach. Had she accepted the submission that causation could not possibly be proven, she would have applied Resurfice, found that the injury that materialized was “within the ambit of the risk created by the Appellant‟s negligence”122 and found that the Plaintiff had proven causation of damages. In the Sam decision, the majority, having found that the “but for” test of causation could not be satisfied by the common sense inference from Snell in light of expert evidence to 118 Ibid. at para. 35. 119 Ibid. at para. 48. 120 Ibid. at para. 53. 121 Ibid. at para. 101. 122 Ibid. at paras. 103-104. - 45 - The series of Supreme Court of Canada decisions from Athey through Walker Estate to Resurfice appear, now, to have established that there are cases in which causation may be proven by establishing that the defendant‟s negligence has materially increased the risk of the injury that has occurred. That appears to be the case, even where the plaintiff is not able to prove on a balance of probabilities that there has been, in fact, a material contribution to the injury. The doctrine does not appear to be restricted to cases where it can be shown that negligence, together with other non-tortious causes, has in fact materially contributed to a loss. On the other hand, it also appears to be clearly established that the “material contribution” test will be narrowly limited and will generally be inapplicable in medical negligence cases where it is possible to lead some evidence on likely outcomes in the absence of negligence. It has been pointed out that the cases from the Supreme Court of Canada provide little assistance in determining when the “material contribution” test may be applied, but recent Trial and Appellate decisions permit us to say: 1. That the Court should not turn to the material contribution test until the plaintiff has established that it is impossible to meet the “but for” test;128 2. That the plaintiff must prove not only that it is difficult or impossible on the evidence to address causation, but that it is impossible in principle to do so;129 3. That impossibility must be a result of logical or structural difficulties, not because of practical difficulties;130 4. That resort should not be had to the “material contribution” test unless the application of the “but for” test to the facts of the case would offend basic notions of fairness and justice;131 and 128 Barker v. Montfort 129 Tonizzo v. Moysa 130 Aristorenas v. Comcare Health Services 131 Resurfice Corporation v. Hanke - 46 - 5. The “material contribution” test should only be employed in the “hard cases” and then as an admittedly policy decision.132 132 Sam v. Wilson, supra at note 32 and 123.