Child v. Vancouver General Hospital et al., [1970] SCR 477

Supreme Court of Canada

Child v. Vancouver General Hospital et al., [1970] S.C.R. 477

Date: 1969-12-22

Frederick Albert Child, by his Committee, Mable Charity Wilce Child (Plaintiff) Appellant;

and

The Vancouver General Hospital and Charleen Tennessy (Defendants) Respondents.

1969: October 14, 15; 1969: December 22.

Present: Cartwright C.J. and Martland, Judson, Ritchie and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence—Hospital patient quiet after suffering several irrational spells—Doctor’s opinion that patient much improved and would continue to do well—Nurse leaving for coffee break—Patient escaping through window and sustaining injuries as result of fall—Whether jury’s verdict in favour of nurse perverse—Whether misdirection of jury.

Three days after the plaintiff had undergone an abdominal operation, from which he appeared to be recovering normally, his condition deteriorated and he was moved to a private room. The hospital directed three special nurses, one of whom was the second defendant T, to care for the plaintiff in eight-hour shifts. During his serious illness on the third, fourth and fifth day after the operation, the patient was, on many occasions, confused and disturbed. He was, from time to time, unaware of his surroundings and suffered from vivid hallucinations.

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When T came on duty on the morning of the fifth day, she noted that her patient was restless and confused. She sent for his doctor, but by the time of the latter’s arrival, as had occurred on other occasions, the patient’s confusion and restlessness seemed to have subsided. The doctor was of the opinion that he was much improved and that he would continue to do well.

Shortly after the doctor’s visit, T left the patient, who at the time was restful and apparently sleeping, for her coffee break. When she returned some fifteen minutes later, she found that the patient had got out of bed and escaped through the window, falling into a canopy on a floor below. As a result of his fall, the plaintiff suffered serious and permanent injuries.

The plaintiff brought action against the hospital and T claiming damages in negligence. The action was tried before a judge and a jury and was dismissed. On appeal, the appeal was dismissed by a unanimous judgment of the Court of Appeal. On the appeal to the Court of Appeal and on appeal to this Court the appellant submitted that the jury’s verdict was unreasonable and that the trial judge erred in directing the jury in certain important aspects.

Held (Cartwright C.J., and Spence J. dissenting): The appeal should be dismissed.

Per Martland, Judson and Ritchie JJ.: The contention that the verdict was perverse could not be upheld and there was no misdirection of the jury by the trial judge. As held by the Court below, the issue of whether or not a possibility that the plaintiff might be overcome by his illness during T’s absence for coffee (and by reason thereof do some irrational act to harm himself) was a real risk as opposed to an unlikely or farfetched possibility, was for and before the jury.

To suggest that T was negligent when the opinion upon which she acted coincided with that of the certified surgeon who was in charge of the case, was to ask more than was required of a reasonably careful and capable nurse.

Per Cartwright C.J. and Spence J., dissenting: There was evidence upon which a jury acting judicially could have brought in a verdict for the defendants and, therefore, the appellant’s first submission should be rejected.

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As to his second submission, the jury should have had pointed out to them T’s admission that she had foreseen the danger and then the jury should have been instructed to answer the question as to whether T was guilty of negligence by determining whether, under all the circumstances, she acted as a reasonably prudent nurse should have acted when she chose to leave her patient for the purpose of enjoying a coffee break.

The jury were not led to a consideration of all the factors, but rather by repeated instructions were asked to consider the irrelevant elements under the circumstances of the reasonable foreseeability of the patient harming himself in an irrational episode.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing the plaintiff’s appeal from a judgment of Aikens J. pronounced after trial with a jury. Appeal dismissed, Cartwright C.J. and Spence J. dissenting.

W.J. Wallace, Q.C., for the plaintiff, appellant.

D.B. MacKinnon and M.P. Ragona, for the defendants, respondents.

The judgment of Cartwright C.J. and Spence J. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for British Columbia¹ pronounced on December 11, 1968. By that judgment, the said Court dismissed an appeal from the judgment of Aikins J. pronounced on June 26, 1967, after trial of the action with a jury.

Before dealing with the grounds of appeal, it is necessary to outline the facts in some particular detail.

Frederick Albert Child, a customs officer of about fifty years of age, underwent a very serious abdominal operation in the Vancouver General Hospital on May 12, 1964. He appeared to be recovering normally from such operation but on May 15 his condition deteriorated and he was moved to a private room and then, after a con-

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ference between the surgeon and the medical staff, the hospital directed three special nurses in eight-hours shifts to care for the plaintiff. These three staff nurses were employed solely to give care to Mr. Child and to no other patient. During his very serious illness on the 15th, 16th and 17th of May, Mr. Child was, on many occasions, “confused” and “disturbed”, to use the words which appeared in the records of the hospital. He was, from time to time, unaware of his surroundings and suffered from vivid hallucinations.

The defendant Charleen Tennessy had acted as a special nurse for the plaintiff on May 16 from 7 a.m. to 3 p.m. During that day, she observed the plaintiff’s serious condition. The plaintiff had an intravenous needle strapped to his arm, a Levine tube leading from his nose to his stomach, extensive dressings, a Penrose drain inserted in his wound, and his abdomen was grossly distended. Nurse Tennessy observed fecal smelling fluid exuding from the still open wound. During that day, Nurse Tennessy observed and noted on the chart that the plaintiff had periods of confusion, great discomfort and unrest. Nurse Tennessy returned to duty on May 17 a few minutes before 7 a.m. and went over the notes of the special nurse who had been on duty from 11 p.m. on May 16 until 7 a.m. on the 17th. Nurse Tennessy acknowledged that she had observed these entries in such notes:

11:30 p.m.—Seems quite restless and confused with visual hallucinations frequently.

12:00 p.m.—Very restless.

1:00 a.m.—Confused, rambling.

5:00 a.m.—Moderately confused and hallucinations persist.

6:15 a.m.—Restless, hallucinating vividly, jumpy and anxious.

Therefore, Miss Tennessy had notice of the fact that only three-quarters of an hour before she assumed her duties on that morning the plaintiff was restless, had been hallucinating vividly, was jumpy and anxious. Nurse Tennessy’s first note in her chart at 7:00 a.m. on the 17th of May was: “Seems more confused and restless this morning.” Nurse Tennessy proceeded with her nursing services, bathing her patient, changing the linen on the bed, and changing the dressing.

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These services, however, had not succeeded in causing the patient to subside as, during the course of them, Mr. Child suddenly sat up in bed and attempted to climb out of bed. Nurse Tennessy easily prevented this by gently pushing her patient back into a prone position. At that time, Mr. Child was restless, confused and quite unaware of the circumstances that there were attached to his body no fewer than three tubes—one in his arm, one in his nose, and one in the wound.

May 17 was a Sunday and Nurse Tennessy testified that she was not sure that the surgeon, Dr. White, would visit the patient that morning. Therefore, she telephoned to him at 8:30 a.m. requesting that he do so and during such telephone call she informed Dr. White of her observations. That telephone conversation was heard by another employee of the hospital, Mrs. Engel, who was the head nurse in the ward. Perhaps, as a result thereof, Mrs. Engel also visited Mr. Child at 8:45 a.m. and observed his confused and restless condition. Dr. White arrived at the hospital at 9:00 a.m. and went directly to Mr. Child’s room. By that time, as had occurred on other occasions, Mr. Child’s confusion and restlessness seemed to have subsided and Dr. White testified that he seemed to be very much better, and that at that time he, Dr. White, had complete confidence that Mr. Child would continue to do well and he did not feel that Mr. Child would become confused again. The fact, however, remains that over the whole of the previous twenty-four hours or more Mr. Child had alternated between periods in which his progress seemed to be quite normal and he seemed quite relaxed and periods when he became confused, restless and vividly hallucinating. Dr. White completed his examination and left the patient’s room and Nurse Tennessy accompanied him to the supervisor’s desk. It is to be noted that this was the second occasion on which Nurse Tennessy left the patient that morning, firstly, to telephone Dr. White and, secondly, to walk with Dr. White from the room to the nursing station. It should also be noted that both of those absences were momentary.

When Nurse Tennessy returned to the patient’s room, she found Mr. Child quiet and apparently

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asleep. She then again departed to go to one of the lower floors and have her usual morning cup of coffee. This would appear to have occurred at about 9:25 a.m. As Nurse Tennessy left her patient’s room, she stopped at the nursing station and informed the acting head nurse who was at the station that she, Miss Tennessy, was going on her coffee break. The acting head nurse was not Mrs. Engel, who herself was absent from the floor at the time. Nurse Tennessy did not request such acting head nurse to watch her patient or attend him in any way and there is no evidence that she had any knowledge of Mr. Child’s condition.

Nurse Tennessy was only absent from her patient for fifteen minutes but when she returned to the room she discovered it was empty, the window was open and some bedding had been tied around the leg of an arm chair and was hanging over the ledge of the window. Looking out the window, she observed the patient on the roof of a canopy two floors below. Although the plaintiff lived, he suffered very serious and permanent injuries, and it would appear he will be completely incapacitated for the rest of his life.

The plaintiff, acting through his wife as Committee, sued the Vancouver General Hospital and Charleen Tennessy claiming damages in negligence. It was agreed by all parties that there was no liability upon the hospital based on any fault in its procedures or treatment and that it was only liable if the defendants Tennessy and Mrs. Engel were negligent in the performance of their duties and were servants of the hospital so as to make that defendant vicariously liable.

Bull J.A., giving the reasons for judgment of the Court of Appeal of British Columbia, said:

It was not challenged, and was found by the jury, that the special nurse, the respondent Tennessy, was employed by the respondent hospital and at all material times was acting within the scope of and in the course of her employment.

That admission was repeated in argument in this Court. For reasons which will appear later, I

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need not be concerned with the status of Mrs. Engel although she was equally an employee of the hospital and was at all material times acting within the scope of such employment.

The question of the vicarious liability of the hospital was the subject-matter of the first and third questions put by the learned trial judge to the jury. In light of the above, I need not deal further with those questions. The second question put by the learned trial judge to the jury, and the all-important one for the purpose of this appeal, was:

Q. Was Nurse Tennessy guilty of negligence which caused or contributed to Mr. Child’s injuries? Answer “yes” or “no”.

The jury answered that question in the negative, as well as a like question, No. 4, dealing with the possible negligence of Mrs. Engel. The jury then did not proceed to deal with the question of damages. It may be of some interest to note that the jury’s answers to questions 2 and 4 were not unanimous but six of the eight answered in the negative in each case. Under the statutory provisions in British Columbia, if a jury has been absent for a certain length of time, which had elapsed in this case, the judge may recall it and inform the members thereof that three-quarters of their number may agree upon the answer to a question. Three-quarters of eight, the number on a jury, is, of course, six.

The appellant submitted to the Court of Appeal for British Columbia and submits also to this Court, that there are two main errors which resulted in the verdict: firstly, that the verdict was unreasonable and, secondly, that the learned trial judge erred in directing the jury in certain important aspects. The first of those reasons may be dealt with rather briefly. As Bull J.A. pointed out in his reasons in the Court of Appeal for British Columbia, the principles upon which an appellate court must act when it is asked to reverse the verdict of a jury are well settled. Those principles have been stated in this Court

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from time to time and particularly in Canadian National Railways v. Mullen[2], where Duff C.J.C. said at p. 769:

We premise that it is not the function of this Court, as it was not the duty of the Court of Appeal, to review the findings of fact at which the jury arrived. Those findings are conclusive unless they are so wholly unreasonable as to show that the jury could not have been acting judicially.

That view was restated by Duff C.J.C. in McCannell v. McLean[3]. It was again cited by Rinfret J. in Coca-Cola Co. of Canada Ltd. v. Forbes[4], and by Hall J. in Byron v. Williams[5].

In the present case, there was evidence upon which a jury could have answered questions 2 and 4 in the negative and, therefore, have found for the defendant, and have acted judicially in so doing. Without canvassing that evidence at length, the opinion of Dr. White after his examination of the patient at 9:00 a.m. on the day of the accident, to which I have referred, may be cited as well as the fact that the defendant Tennessy had left her patient without any untoward event on two previous occasions on the morning of May 17 and on six or eight occasions during the course of her duties on May 16, and that when she did leave her patient on the occasion when the catastrophe occurred she left him resting quietly and apparently asleep. There was, in addition, Dr. White’s testimony that he was of the opinion that the drug which had been prescribed for the patient and which he had been taking until that morning might have caused those disturbing symptoms and he instructed a change in that drug. Other items of evidence could be cited but it is sufficient to say that on items which I have recited above and on other items, a jury acting judicially could have brought in a verdict for the defendants. I am, therefore, not ready to accept the appellant’s first submission, and I would not hold that the verdict was unreasonable and should be quashed.

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The second submission made by the appellant is much more important and much more difficult. The learned trial judge instructed the jury in a very long, very carefully thought out and very detailed charge. The jury returned with questions and the judge recharged the jury, again carefully and extensively. Under such circumstances, one would not expect to find a fault in the charge sufficient to justify the allowing of the appeal and the directing of a new trial. This is more especially true when one reads the core of the learned trial judge’s charge as to negligence where he said:

I have described the first element in negligence to you: that is, the duty to take care. I now go on to the second element. Before there can be negligence there must be a breach of the duty to use reasonable care which I have just described. A breach of the duty, I have stated, may be by an act of omission or by an act of commission. That is, putting it perhaps a little more simply, the breach may lie in doing something, or in failing to do something, which a reasonably careful nurse in the one case would not have done, or in the other case would have done. You may find nurse Tennessy negligent if, and only if, you are satisfied that she did something which in all the circumstances a nurse using reasonable care would not have done, or that she omitted to do something which in all the circumstances a nurse using reasonable care would have done.

With respect, I entirely agree with this instruction. It is the submission of the appellant, however, that the learned trial judge proceeded from that general instruction on negligence to deal in detail with how the jury should determine if the nurse had, in all the circumstances, done something which a nurse using reasonable care would not have done, for, when the trial judge turned to this issue, he instructed the jury not once but on many occasions that the test was whether the nurse should have reasonably foreseen that it was unsafe to leave her patient. The learned trial judge said:

The contention, as I understand it, is that Miss Tennessy was negligent in leaving her patient un-

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attended, because if she had used reasonable care, and considered the knowledge she had of the patient, including her knowledge that he attempted to get out of bed, if you find that that is what he did in fact attempt to do, she should have reasonably foreseen that it was unsafe to leave him alone. Shortly, the case against Miss Tennessy is that in all the circumstances, if she had used reasonable care, she ought to have reasonably foreseen that it was unsafe to leave Mr. Child unattended.

And again,

Of course, if you find negligence on the part of Miss Tennessy on the basis of the case of the plaintiff, as I understand it, namely that if she had used reasonable care, she should have foreseen that the patient might have another period of irrationality, and if left alone in such period might injure himself because of irrationality, then of course you have to use the same basis for determining whether or not the damage resulting from the negligence was too remote; and the latter question will probably cause you no great difficulty at all.

Now in directing you on negligence, I have spoken about the plaintiff’s case, which essentially is that Miss Tennessy ought to have known, because it was reasonably foreseeable on the information she had, that Child might have another period of irrationality, and if left alone might, during such period, injure himself, and she failed in using reasonable care in looking after this patent because she left him without making sure someone else was with him while she was away, so that her patient would not come to harm while alone.

Then, in his recharge, the learned trial judge said to the jury:

Before you may find Miss Tennessy negligent, you must be satisfied that a nurse using reasonable care, and having the knowledge of the case which Miss Tennessy had, would have reasonably foreseen that Mr. Child might have another irrational period, and that if left alone he might during such irrational period injure himself.

and he repeated those very words within a few moments. This recharge was made despite the

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vigorous argument of counsel for the appellant that there was no question about foreseeability. It was admitted that the defendant Tennessy foresaw the possibility and the risk. The explanation would appear to lie in the answer of the learned trial judge to such submission when he said:

I don’t think that it went quite this far, that she said that she in fact had both those things in mind at the time. Surely it is a matter of her saying, really, now, in retrospect, “I agree, looking at it, that either one or the other might have happened.”

In my opinion, this was a serious misunderstanding of the evidence of the defendant Tennessy in cross-examination. On not one but many occasions, she admitted that she had realized that it was possible for a patient such as Mr. Child, who had been suffering restlessness, confusion and irrational episodes on not infrequent occasions during the period of more than twenty-four hours, to have a repetition of such an episode and to do himself harm. It is perfectly true that the defendant Tennessy was of the opinion that there would not be a repetition of such an episode. She said quite frankly in her evidence that if she had been of the opinion that such an episode would be repeated, as distinguished from might be repeated, she would simply have remained in her room and could most easily have controlled such an episode as she did only an hour and a quarter before she left the room. It was, therefore, the admission of the defendant Tennessy that not only was such an occurrence reasonably foreseeable but that she had foreseen it, and I quote here her exact words:

I assumed that he wouldn’t go into one of these states.

Therefore, I am in accord with the submission made by counsel for the appellant that under these circumstances detailed instructions to the jury upon the question of reasonable foreseeability were irrelevant and unnecessary. The jury should have had pointed out to them the defendant Tennessy’s admission that she had foreseen the danger and then the jury should have been

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instructed to answer question No. 2 by determining whether, under all the circumstances, she acted as a reasonably prudent nurse should have acted when she chose to leave her patient for the purpose of enjoying a coffee break. The jury should have been instructed that they had to consider all of the circumstances not only that the defendant Tennessy had foreseen the risk but that the defendant Tennessy also knew of her patient’s restful and apparently sleeping state when she left him, of the doctor’s verbal prognosis made a few moments before, and of the other occasions when she had left her patient without any harm occurring, but also the circumstances of the frequent irrational episodes during the previous night and day.

I am further of the opinion that it is proper for a jury in considering whether the actions of the defendant Tennessy were those of a reasonably prudent nurse under all of the circumstances to consider the ease by which injury from a possible recurrence of irrationality could have been avoided, i.e., by remaining in the room herself or requesting someone else on the staff to keep an eye on her patient, and also the necessity or lack of it for the nurse’s departure from the room. I realize that the doctor’s instructions had not called for 24-hour surveillance but it is within the jury’s proper consideration to determine whether even lacking such instructions, in view of the circumstances which existed at the time and for the previous period, a reasonably prudent nurse would have exercised a surveillance perhaps less than a constant 24-hour surveillance but more carefully than that which the defendant Tennessy did exercise. Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (The Wagon Mound, No. 2)[6], per Lord Reid at pp. 718-19; Watt v. Hertfordshire County Council[7], per Lord Denning at p. 371.

Coming, as I do, to the conclusion that the jury were not led to the consideration of these factors but rather by repeated instructions were asked to consider the irrelevant elements under the circumstances which existed in this case of

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the reasonable foreseeability of the patient harming himself in an irrational episode, I am of the opinion that the appeal should be allowed and that a new trial should be directed. Governor and Company of Adventurers of England Trading into Hudson’s Bay v. Wyrzykowski et al.[8], per Hudson J. at p. 292; Swadling v. Cooper[9], per Lord Hailsham, at p. 10.

I would allow the appellant’s costs in this Court and in the Court of Appeal for British Columbia and I would direct that the costs of the first trial be in the discretion of the judge presiding at a second trial.

The judgment of Martland, Judson and Ritchie JJ. was delivered by

RITCHIE J.—This is an appeal from a unanimous judgment of the Court of Appeal of British Columbia[10] dismissing an appeal by the appellant from a judgment rendered by Aikins J. sitting with a jury, which dismissed the appellant’s claim for damages allegedly occasioned through the negligence of the respondent Nurse Tennessy and the Vancouver General Hospital.

After careful consideration of the very thorough arguments of counsel, I have concluded that there is nothing which I can usefully add to the reasons for judgment delivered by Bull J.A. on behalf of the Court of Appeal of British Columbia with which I am in full agreement.

For the reasons stated by Mr. Justice Bull, I am of opinion that the appellant’s contention that the jury’s verdict was perverse cannot be upheld and that there was no misdirection of the jury by the learned trial judge.

Since writing the above, I have had the opportunity of reading the reasons for judgment of my brother Spence, with which the Chief Justice has indicated his concurrence, and I think it desirable that I should express myself more fully.

The negligence alleged against the plaintiff’s special nurse, Charleen Tennessy, centers around

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the fact that after having noted that her patient was restless and confused when she first came on duty on the 17th of May, she sent for his doctor and that after the doctor had interviewed him, she left her patient alone for 15 or 20 minutes to go and have her morning cup of coffee and on her return found that he had got out of bed and escaped through the window falling into a canopy on the floor below.

At the outset it appears to me to be important to appreciate, as my brother Spence did, that Nurse Tennessy’s duties did not require her to be in the room with her patient at all times. In this regard Dr. White, who was the surgeon in charge of Mr. Child’s case, was asked:

Q. …You knew he was not getting constant surveillance?

A. If this constant surveillance means someone in the room with him at all times, I knew that he was not.

It was submitted on behalf of the appellant that, in light of the evidence, this case should have been left to the jury on the basis that when the nurse left the room to go for her coffee, she knew that there was a real risk of her patient having another hallucinatory spell and doing harm to himself. On this basis it was contended that the real issue was whether, as Miss Tennessy appreciated this risk, she was acting as a reasonably careful and capable nurse in leaving her patient for the purpose of her own convenience. Looked upon in this light, it was urged by counsel for the appellant that the learned trial judge’s failure to instruct the jury along these lines was in effect a failure to charge them as to the basis of the appellant’s case and that the question of foreseeability as such was of secondary importance compared to that of balancing a known risk, although even slight, against personal convenience. My brother Spence appears to adopt this argument but with the greatest respect, I do not share the views which he expressed concerning Miss Tennessy’s knowledge of the existence of a known risk. In this regard my brother Spence said:

It was, therefore, the admission of the defendant Tennessy that not only was such an occurrence rea-

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sonably foreseeable but that she had foreseen it, and I quote here her exact words:

“I assumed that he wouldn’t go into one of these states.”

Therefore, I am in accord with the submission made by counsel for the appellant that under these circumstances detailed instructions to the jury upon the question of reasonable foreseeability were irrelevant and unnecessary.

In questioning Miss Tennessy on cross-examination about her leaving the room for the coffee break, counsel for the appellant repeatedly invited her to state whether or not at that time she assumed that her patient was going to go into another “confused state”. At first Miss Tennessy replied “We try not to assume things”, and she then indicated that she might assume one way or the other. Finally, however, counsel elicited the following answers:

Q. Now, in view of that background you, as a specialist, special nurse, would you continue your services or treatment—not treatment, service, nursing service on the assumption that he might go into one of these stages at any time, or would you base your nursing services on the assumption that he would not go into one of these conditions?

A. I would assume an hour and a half later the fact that he was resting quietly, his doctor had visited him, his dressings had been changed, he had had a bowel movement and passed his water, he had had a bath, his linen had been changed, he appeared to be sleeping when I left, had answered the doctor’s questions lucidly, I would assume that he would be perfectly safe while I went for my coffee.

Q. All right. So you made the assumption, then, in going for your coffee that the patient would not go into one of these confused states that he had been in in increasing frequency during the night?

A. Yes.

Q. Is that correct? I see. And had you made, rendered your nursing services on any other assumption, namely, that he might go into one of these confused states you would not have gone for coffee at that time, is that correct?

A. Well, if I had thought that, of course I wouldn’t have gone for my coffee.

I do not think that this amounts to anything more than an expression of Miss Tennessy’s

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opinion that she did not consider it to be within the bounds of reasonable probability that Mr. Child would have a recurrence of one of his “confused states” and do himself harm while she was away. In this regard her opinion coincided with that of Dr. White who was asked:

MR. MACKINNON: Q. Doctor, from your knowledge of this case, more particularly your observations that you made on the morning of May 17th, at about 9 a.m., did you form a medical opinion as to the probability of what the patient might do if left unattended for 15 minutes at approximately 9.25 a.m.?

A. I had at that time complete confidence that he would continue to do well.

THE COURT: Just a minute, please.

A. Because he was so lucid I did not feel he would become confused again.

In the course of his cross-examination, Dr. White gave the following answers:

Q. Yes. And you felt that his improvement was considerable and that his confusion had diminished very rapidly?

A. Had disappeared.

Q. Disappeared or diminished—oh, is that it, disappeared?

A. Yes.

At an earlier stage in his examination, the doctor had said of the patient’s condition on the morning of the 17th: “I felt he was much improved. I felt that all our troubles were over”.

In relation to the evidence as to “real risk”, I adopt the language of Bull J.A. in the Court of Appeal where he said:

That the evidence referred to does constitute appreciation or knowledge of a real risk at the time and place in question is far from clear and it was for the jury alone to consider and weigh and determine its meaning and extent. I am satisfied that the issue of whether or not a possibility that the appellant might be overcome by his illness during Nurse Tennessy’s absence for coffee (and by reason thereof do some irrational act to harm himself) was a “real risk” as opposed to an unlikely or farfetched possibility, was for and before the jury.

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I do not find it necessary to discuss the effect of the cases of Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (The Wagon Mound, No. 2)[11], or Bolton v. Stone[12], because, as I have indicated, I am satisfied that Mr. Justice Bull has correctly stated the law relating to the circumstances of this case.

I think it desirable to stress the fact that the question of liability in the present case is to be determined in light of the circumstances as they existed immediately before Miss Tennessy left the room to go for her coffee break. After an accident it is all too easy to approach the question of fault in light of the event which has happened, and with the greatest respect, it appears to me that such an approach is reflected in the argument made on behalf of the appellant.

To suggest that Miss Tennessy was negligent when the opinion upon which she acted coincided with that of the certified surgeon who was in charge of the case, is, in my opinion, to ask more than is required of a reasonably careful and capable nurse.

As I have indicated, for all these reasons I would dismiss this appeal with costs.

Appeal dismissed with costs, CARTWRIGHT C.J. and SPENCE J. dissenting.

Solicitors for the plaintiff, appellant: Bull, Housser & Tupper, Vancouver.

Solicitors for the defendants, respondents: Harper, Gilmour, Grey & Co., Vancouver.