Lévesque v. Comeau et al., [1970] SCR 1010

Supreme Court of Canada

Lévesque v. Comeau et al., [1970] S.C.R. 1010

Date: 1970-06-26

Lola Lévesque and Georges Lévesque (Plaintiffs) Appellants;

and

Martin Comeau and Alma Lévesque (Defendants) Respondents.

1970: March 10; 1970: June 26.

Present: Fauteux, Martland, Judson, Ritchie and Pigeon JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Negligence—Causation—Motor vehicle collision—Blow on head and nerve deafness developing months later—Medical evidence of possible cause—Available witnesses not called—Causation not proved.

The appellants’ claim for damages in respect of injuries allegedly sustained by the female appellant as a result of a motor vehicle collision which occurred when she was a passenger in her husband’s car while it was stationary at a street intersection and was struck in the rear by a motor vehicle owned by the male respondent and operated by the female respondent was dismissed at trial. An appeal from the trial judgment was dismissed by the Court of Appeal.

The negligence of the respondent driver was admitted and the only question was whether the female appellant suffered the injuries complained of as a result of the collision and particularly whether it had been shown to be more probable than not that the accident was the cause of the serious impairment of her hearing.

Held (Martland and Ritchie JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Judson and Pigeon JJ.: Although causality does not have to be established with absolute certainty, but only by a preponderance of probabilities, such preponderance was not shown in this case. Trauma was presented by the appellant’s expert as only one of the possible causes of the deafness, on the same level as the others. Furthermore, he listed various factors which, without rendering the causality impossible, were none the less unusual.

Also, the appellant’s expert examined her for the first time more than a year after the accident, and after she had consulted several doctors and under-

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gone different examinations in the meantime. She alone could bring before the Court the evidence of those facts and as she had failed to do so, it must be presumed that such evidence would adversely affect her case. Under the circumstances, her testimony and that of her husband respecting her good state of health before the accident could properly be considered insufficient evidence for the purpose of excluding the other possible causes of deafness.

Per Martland and Ritchie JJ., dissenting: The evidence, when read as a whole, disclosed that a perfectly healthy woman who had never suffered deafness received a blow on the head capable of causing trauma which is a recognized cause of nerve deafness, and she in fact began to develop nerve deafness within two months after the accident. Notwithstanding the fact that her deafness did not develop in the usual or average manner, the doctors who testified for the parties were at one in their opinion that there is really “nothing normal” in such cases and that “anything is likely in medicine”.

The appellants were not required to negative all other possible known causes of nerve deafness in order to establish that it was more probable than not that the appellant’s deafness was occasioned by trauma which developed as a result of the blow she received. The sequence of events which was disclosed in the evidence pointed to the blow as the most probable cause of her affliction.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, affirming a judgment of Dickson J. Appeal dismissed, Martland and Ritchie JJ. dissenting.

S.M. Leikin, for the plaintiffs, appellants.

J.T. Jones, for the defendants, respondents.

The judgment of Fauteux, Judson and Pigeon JJ. was delivered by

PIGEON J.—The facts are stated in the reasons of my brother Ritchie. I cannot agree that this is a case in which the concurrent findings of fact of the judge who heard the witnesses and of the Appeal Division of the Supreme Court of New Brunswick should be set aside.

The only question is whether the evidence adduced by appellant Lola Levesque is sufficient to prove that the deafness she suffers from is the

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result of the automobile accident in which she was injured. The settled rule is that causality does not have to be established with absolute certainty, but only by a preponderance of probabilities. In my opinion, this preponderance is unfortunately not to be found in the record.

Only one medical expert testified for appellant. Although pressed, he never stated that the accident in question was probably the cause of the deafness. What he said was that this was not impossible, while also stating that it was not impossible that the deafness was occasioned by another cause. If he had testified on the one hand that the accident was the probable cause and, on the other, that it was not impossible that it be something else, then I would agree that the trial judge erred in holding that the evidence adduced showed the accident and the other possibilities as equally probable causes, but, in my opinion, such is not a proper assessment of the evidence.

Trauma was presented by the expert as only one of the possible causes of the deafness, on the same level as the others. Furthermore, he listed various factors which, without rendering the causality impossible, were none the less unusual:

1. the long interval, somewhat more than two months, between the concussion and the onset of deafness;

2. the absence of dizziness during this period, except for the very first days;

3. the fact that the deafness affects both ears equally.

A preponderance of probabilities is, therefore, far from being shown.

This is not all. Appellant Lola Levesque’s expert examined her for the first time more than a year after the accident, and after she had consulted several doctors and undergone different examinations in the meantime. She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would

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adversely affect her case. The fact that those witnesses all live in Montreal does not make the rule any less applicable. Appellant Lola Levesque should, if necessary, have applied for a rogatory commission. Under the circumstances, her testimony and that of her husband respecting her good state of health before the accident could properly be considered insufficient evidence for the purpose of excluding the other possible causes of the deafness.

For those reasons, I would dismiss the appeal with costs.

The judgment of Martland and Ritchie JJ. was delivered by

RITCHIE J. (dissenting)—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick affirming the judgment rendered at trial by Dickson J., whereby he dismissed the appellants’ claim for damages in respect of injuries allegedly sustained by the female appellant as a result of a motor vehicle collision which occurred when she was a passenger in her husband’s car while it was stationary at a street intersection and was struck in the rear by a motor vehicle owned by Martin Comeau and operated by Alma Levesque.

The negligence of the respondent driver was admitted in this Court and in the Courts below and the only question to be determined is whether the appellant suffered the injuries of which she now complains as a result of the collision and particularly whether it has been shown to be more probable than not that the accident was the cause of the serious impairment to the female appellant’s hearing which did not manifest itself until approximately two months after the event.

The accident occurred on May 15, 1965, at Dalhousie in the Province of New Brunswick where the appellants, who live in Montreal, had been staying for the purpose of attending their daughter’s wedding. As a result of the collision, which caused more than $575 damage to Mr. Levesque’s car, his wife was thrown forward so that she hit her head on the dashboard as a result of which she felt dizzy and had to stay in the car

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to get over the shock. Her husband gave this account of what followed:

Q. And what happened after the accident, where did you go?

A. After the accident, we went to the police office and then we had to turn about, the wife was sick, she got hurt so we had to turn out and go home.

Q. Where did you go?

A. Well, then we went up to St. Arthur that night.

* * *

Q. So you went to St. Arthur?

A. Yes, that night, we slept there that night and the next morning we left for Montreal.

Q. Anything happen along the road going to Montreal?

A. No, nothing happened, the wife was real sick, we had to get ice many places to keep on her head. She was suffering with a big headache.

Speaking of the female appellant’s health before and after the accident, the husband said:

A. The wife never was sick, I would say she never was sick only the times she went to the hospital for those babies but besides that she had a very big health, she never was sick hardly in her life.

Q. Did she do anything besides being the mother of your children? Did she do any work?

A. Besides working, yes, she did some work before the accident.

Q. Where had she worked?

A. She was working in Radio Engineering.

Q. Before the accident when you were living in St. Arthur or Montreal, did you notice anything about your wife?

A. Absolutely nothing, she was in very good health.

Q. After your return to Montreal, did you notice any change?

A. Yes, I noticed a change.

Q. What kind of change did you notice?

A. Before long she had headaches, she started to lose weight. Sometimes she couldn’t do the

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work, she would have very big headaches. When I started, I noticed she started to lose her hearing, we would talk and she didn’t notice but we noticed.

Q. What happened this year. What happened when you used to talk to her then?

A. When we used to talk to her, we used to talk and if she had her head turned, she did not answer so I started to see was something wrong, so we started to check on her, that is how we noticed there was.

He later said:

Q. When did this happen, this loss of hearing?

A. We noticed it about two months after, we notice she was losing…

Q. Two months after what?

A. After the accident.

Q. After May 15, 1965?

A. Yes.

After their return to Montreal Mrs. Levesque complains that she had persistent headaches and within a few weeks went to see a Dr. David who was a general practitioner; he prescribed pills but the pains in her head persisted and finally she stated that because of difficulty in hearing she went to see a Dr. Duchastel who was an ear specialist and “head specialist”. He tested her hearing and found something wrong with it but his prescription was also limited to the taking of pills for relief of pain and a recommendation to put icepacks on her head. Dr. David sent Mrs. Levesque to a hospital where she was x-rayed by technicians and Dr. Duchastel also caused an x-ray to be taken, but neither found any fractures. One of the technicians advised her to get a hearing aid, which she did.

Mrs. Levesque felt that the doctors she had consulted in Montreal did not appear to be able to diagnose the cause of her deafness with any certainty and accordingly she went to Campbellton, New Brunswick, to see a Dr. N. Nadeau, an eye, ear, nose and throat specialist of whom she had heard when she was living in that area. He

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found after testing her ears that she had a very severe nerve deafness amounting to at least 90 per cent loss of hearing in her left ear and 70 per cent in the right ear. Dr. Nadeau’s first examinations was in July 1966, but he examined her again in December and found “the same nerve deafness but increased in severity”. He testified that there was no, cure and little hope of arresting the deafness.

After the July consultation, Dr. Nadeau advised Mrs. Levesque to see another specialist in Montreal but she says that this doctor gave her no treatment and no report of the result of the examination.

Some time later a Dr. Duquette was consulted, but this appears to have been in relation to the patient feeling sick and he sent her to the hospital for a check-up which resulted in a diagnosis of “ulcers”.

Dr. Nadeau was the only witness who testified for the appellants in relation to Mrs. Levesque’s injury and the respondents’ counsel made much of the fact that the Montreal doctors had not given evidence and that Mrs. Levesque refused to see a doctor retained by the respondents unless Dr. Nadeau was present. In this regard the learned trial judge commented as follows:

It is possible that the evidence of the other doctors who treated Mrs. Levesque from time to time might have cast some light upon the causes of her condition. There can, of course, be no assumption that such evidence would have been favourable to her case. If anything, the assumption would be that it would be unfavourable. In any event its absence leaves unfilled certain gaps in the total story and the doubts thereby raised perhaps harm rather than enhance the plaintiff’s position.

With the greatest respect, I do not feel that the failure to adduce evidence from the doctors consulted in Montreal should weigh against the appellants because they do not appear to me to have either diagnosed the cause of Mrs. Levesque’s condition or to have done anything effective about it. I am further of opinion that Mrs.

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Levesque was justified in refusing to see the respondents’ doctor otherwise than in the presence of her own adviser.

It is clear from the evidence of both Dr. Nadeau and Dr. Silver, the specialist called for the respondents, who had not examined Mrs. Levesque, that concussion can be caused by a blow on the head and can result in trauma which in turn can cause nerve deafness. They both were of opinion that normally nerve deafness caused by trauma manifests itself earlier than two months after the blow and that it is usually accompanied by dizziness and confined to one ear. Dr. Nadeau, however, stated that “there is nothing normal” in such cases and Dr. Silver went a little further by saying “anything is likely in medicine”.

When Dr. Silver was asked about the causes of nerve deafness he testified as follows on cross-examination:

A. Trauma by itself can cause nerve deafness.

Q. With nothing else?

A. With nothing else, it can, sir.

Q. This blow could have caused it?

A. This blow specifically, the traumatic…

Q. Yes.

A. I have no conception how severe a blow this was. A blow to the head can cause nerve deafness, a blow to the head.

Q. I see.

A. A blow to the head.

And he also confirmed what is perhaps common knowledge, namely, that “severe headache is a symptom of any blow to the head.”

As the learned trial judge has pointed out, in the course of Dr. Silver’s evidence, “he testified that nerve deafness could result from any of many causes and listed:

infection, such as meningitis or syphilis, a high fever due to a virus, the ingestion or inhalation of certain chemicals, medication, such as quinine, when taken in high doses, heredity, physical defect at birth, trauma, or different medical reasons, such as leu-

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kemia or other blood diseases. Frequently after a long period of time it may not be possible to attribute the deafness to the actual cause, as, for instance, where it is attributable to a fever or bad cold long since forgotten.

Mrs. Levesque was a woman of thirty-six years of age who had had no trouble with her ears before the accident. Her husband testified to her excellent health and she confirmed that she had never had to see a doctor save for her confinements in giving birth to her eight children.

The evidence of the two appellants concerning Mrs. Levesque’s health, in my opinion, constitutes prima facie proof of the fact that prior to the accident she had never suffered from any of the complaints which the doctors enumerated as being causes of nerve deafness. Their evidence is uncontradicted and there is no suggestion in the reasons for judgment of the learned trial judge that he questioned their credibility.

In commenting on the vital question of whether it was more probable than not that the deafness was caused by the blow sustained in the accident, the learned trial judge made the following statement:

The evidence of both medical doctors indicates that it is at least equally possible, and also equally probable, that the deafness has resulted from some other cause.

(The italics are my own.)

In this regard, with the greatest respect, I am of opinion that the learned trial judge fell into error. The evidence of Dr. Nadeau in this regard was elicited on cross-examination and reads as follows:

Q. Nor is it impossible, is it, Doctor, that this nerve deafness—nerve damage, was occasioned by a cause other than trauma?

A. It is not impossible.

Q. It is quite possible, is it not? Pardon?

A. On this, nobody… I can’t say yes or no.

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In the course of his direct examination, this evidence was read to Dr. Silver and he replied: “I agree with that. I think that is a very correct answer.”

As I have indicated, this is the only evidence directly bearing on the important question of alternative causes of the deafness and with the greatest respect I do not think that it justifies the learned trial judge’s finding that it is “equally probable that the deafness has resulted from some other cause” than trauma.

In my view, when the evidence is read as a whole, it discloses that a perfectly healthy woman who had never suffered from deafness received a blow on the head capable of causing “trauma” which is a recognized cause of nerve deafness, and she in fact began to develop nerve deafness within two months after the accident. Notwithstanding the fact that her deafness did not develop in the usual or average manner, the doctors are at one in their opinion that there is really “nothing normal” in such cases and that “anything is likely in medicine”.

I do not think that the appellants were required to negative all other possible known causes of nerve deafness in order to establish that it is more probable than not that Mrs. Levesque’s deafness was occasioned by trauma which developed as a result of the blow on the head which she received in the collision. I am of opinion that the sequence of events which is disclosed in the evidence points to the blow which she received as the most probable cause of her affliction.

In the case of Gardiner v. Motherwell Machinery and Scrap Co. Ltd.[1], the plaintiff had contracted dermatitis and claimed that this ailment, from which he had never before suffered, was caused by the failure of his employers to provide proper washing facilities. In the House of Lords the finding that there was such a failure was not disputed and the appeal was limited to the contention that the appellant had failed to prove any connection between the disease and the work which he had been doing. It was accepted by some of the judges that the affliction had started “in a way typical of disease caused by such conditions”, and although the evidence in the present

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case cannot be said to establish that Mrs. Levesque’s nerve deafness developed in a “typical” way, I none the less feel that the observations of Lord Guest in the Gardiner case at p. 1431 are applicable to the present circumstances. He there said:

In view of the concession made by the respondents the question is a pure question of fact whether on balance of probabilities the dermatitis arose from the appellant’s employment; in other words, whether it was more likely that the appellant contracted the disease in his employment than elsewhere. A number of doctors gave evidence on each side. Their evidence disclosed a remarkable diversity of medical opinion, but I do not regard it as a medical question in the sense that it is necessary to decide which body of medical opinion is right. But regarding the matter as a question of fact I think it is more probable that the appellant contracted the disease in his employment…

I have given this matter anxious consideration because it is not the practice of this Court to overrule the findings of two provincial Courts, but I am satisfied that this is one of the exceptional cases in which that course should be followed. In this regard I refer to the observations made by Mr. Justice Taschereau in The North British & Mercantile Insurance Company v. Tourville[2], at p. 195, where he said:

We do not fail to take into consideration, I need hardly say, that the fact of the two provincial courts having come to the same conclusion enhances the gravity of our duties, and imposes upon us, more than might perhaps be required under other circumstances, the strict obligation not to allow the appeal without being thoroughly convinced that there is error in the judgment. But, at the same time, we would unquestionably be forgetful of our duties if we did not form an independent opinion of the evidence, and give the benefit of it to the appellants if they are entitled to it.

The learned trial judge limited the general damages of the female appellant, exclusive of her deafness, to $300 and while I consider this to be the barest minimum having regard to the pain and inconvenience which she suffered, I none the less

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do not feel that it is an award with which this Court should interfere. I would also confirm the awards of special damage to Georges Levesque in the amount of $578.42 and the special damages awarded to his wife in the amount of $543.30.

The respondent has cross-appealed alleging that the provisional assessment of Mrs. Levesque’s general damages for deafness at $25,000 “is inordinately high” having regard to awards generally given for a like affliction. In the view I take of the matter, $25,000 is little enough compensation for a perfectly healthy woman with perfect hearing becoming almost totally deaf. There is, however, no appeal by the appellant from the provisional assessment and I would accordingly confirm it.

For all these reasons, I would allow this appeal with costs and set aside the judgment in the Courts below. I would, however, confirm the provisional assessment of the damages sustained by the appellants as proposed by the learned trial judge.

This appeal being in forma pauperis, the provisions of Rule 142 of the Rules of the Supreme Court of Canada will apply to the taxation of costs in this Court.

The appellants are entitled to their costs in the Courts below.

Appeal dismissed with costs, Martland and Ritchie JJ. dissenting.

Solicitors for the plaintiffs, appellants: Leikin & Finn, Ottawa.

Solicitors for the defendants, respondents: Gilbert, McGloan & Gillis, Saint John.