Supreme Court of Canada
Hôpital Notre-Dame de l’Espérance and Théoret v. Laurent, [1978] 1 S.C.R. 605
Date: 1977-09-30
Hôpital Notre-Dame de l’Espérance (Defendant) Appellant;
and
Dame Jeanne F. Laurent and Eugène Laurent (Plaintiffs) Respondents;
Rodrigue Théoret (Defendant) Appellant;
and
Dame Jeanne F. Laurent and Eugène Laurent (Plaintiffs) Respondents.
1977: March 10; 1977: September 30.
Present: Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Physicians and surgeons—Error in diagnosis of physician in emergency room—Liability of hospital—Contributing fault of victim—Husband’s claim—Cost of expert opinions—Civil Code, arts. 173, 1053, 1054 and 1056.
Following an accident, respondent Dame Laurent was taken to the emergency room of appellant, Notre-Dame de l’Espérance hospital, where she was examined by appellant Rodrigue Théoret, a surgeon who, without having X rays taken, diagnosed a simple “contusion”. Some three months later, Dame Laurent saw another surgeon who diagnosed the fracture from which she had suffered since the accident. A long and complicated surgical treatment followed, the difficulty having been greatly increased by the delay. The partial permanent disability was also increased as a result.
In the suit brought by Dame Laurent and her husband against the surgeon and the hospital, the Superior Court held the two defendants jointly and severally liable. However, it also found that the plaintiffs had contributed to the damage suffered by delaying to obtain medical care, in a proportion fixed at one-quarter. It therefore awarded three-quarters of the damages established, that is $22,875, to Dame Laurent for disability, pain and so on, and $6,819.36 to the husband for medical costs and fees, and “loss of consortium”, as well as the cost of medical reports obtained before the institution of the proceedings to establish the percentage of disability of his spouse. A majority of the Court of Appeal affirmed the judgment of the Superior Court but deducted from the sum awarded to the husband part of the cost of medical reports (the Court of Appeal was
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unanimous on this point). The surgeon and the hospital brought appeals against Dame Laurent and her husband. There were then cross-appeals by the two spouses against the two appellants.
Held: The appeal of appellant (hospital) is allowed and the cross-appeal is dismissed. The appeal of appellant (surgeon) is dismissed and the cross-appeal is allowed, reinstating the judgment of the Superior Court against him.
All aspects of this complex dispute were again put in issue before this Court, except the surgeon’s professional negligence which, in view of the concurrent findings of the courts of Quebec, was not disputed. The questions at issue were the following:
(1) The apportionment of liability: this is a question of fact and this Court, like the majority of the Court of Appeal, sees no reason for disturbing the finding of the trial judge, based in part on his assessment of credibility.
(2) Liability of the hospital: the lower Courts were wrong in holding that the hospital should share the liability for the surgeon’s fault. This fault was twofold, the second error being the surgeon’s failure to see his patient again and to give her a more thorough examination. The hospital can certainly not be held liable for that fault. As for the initial fault (the wrong diagnosis in the emergency room), the evidence shows no master and servant relationship between the physician and the hospital. It is the ordinary rules of civil delictual liability which are applicable here, and since the physician was not acting as an employee of hospital, the latter cannot be held liable.
(3) The husband’s claim: the word “another” in art. 1053 C.C. does not apply only to the person who suffered bodily injury. The courts have accepted that a third party who had paid the medical expenses incurred by the victim was entitled to recover such an amount from the person who caused the damage. As for the compensation for loss of “consortium” or “servitium”, a husband who is deprived of the succor and assistance his spouse owes him under art. 173 C.C. has the right to claim it.
(4) Consequence of the common fault: the husband who claims compensation by reason of bodily injury suffered by his wife is subject to the same rule as beneficiaries under art. 1056; in other words, the compensation must be reduced in proportion to the fault of the victim.
(5) The costs of expert opinions: despite the consistent line of cases in the Court of Appeal, this Court
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considers that the trial judge was right in granting the husband the right to recover the disbursements he had to make to establish the extent of the injury suffered by his wife.
Curley v. Latreille (1920), 60 S.C.R. 131; Quebec Asbestos Corp. v. Couture, [1929] S.C.R. 166, applied; Martel v. Hôtel-Dieu St-Valier, [1969] S.C.R. 745, distinguished; Moreau v. Labelle, [1933] S.C.R. 201; Grimaldi v. Restaldi, [1933] S.C.R. 489; Villemure v. Turcot et al., [1973] S.C.R. 716 reversing [1970] C.A. 538; The Trustees of the Toronto General Hospital v. Matthews, [1972] S.C.R. 435; Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie, [1932] A.C. 295, [1929] S.C.R. 650, (1928), 46 Que. K.B. 96; The Queen v. J.L. Sylvain and Guy Sylvain, [1965] S.C.R. 164; Lister v. McAnulty, [1944] S.C.R. 317; Rainville Automobile Ltd. v. Primiano, [1958] S.C.R. 416, referred to; Proulx v. City of Hull, [1947] Que. Q.B. 135, disapproved.
APPEALS from a decision of the Court of Appeal of Quebec affirming in part a judgment of the Superior Court. Appeal of appellant (hospital) allowed and cross-appeal dismissed. Appeal of appellant (surgeon) dismissed and cross-appeal allowed in part.
Gilles Renaud, Q.C., for the appellant, Hôpital Notre-Dame.
Bertrand Lacombe, for the appellant, Théoret.
Guy Gilbert, Q.C., for the respondents.
The judgment of the Court was delivered by
PIGEON J.—On January 22, 1966 respondent Dame Laurent fell and twisted her hip while curling. She was taken by ambulance to Notre-Dame de l’Espérance hospital suffering from acute pain in her right thigh. In the emergency room appellant Rodrigue Théoret, a surgeon with twenty years’ experience, took her into his care. Without having X rays taken he diagnosed a simple “contusion”. He had an injection of a sedative (Demerol) administered and prescribed medication to relieve the pain. He also told the patient to get in touch with him in a few days to let him know how her condition was progressing. When consulted by telephone at his office a week later, he simply
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renewed the prescription. On January 24, he sent Dame Laurent a statement of account, and the latter telephoned him on February 3. On May 1 she saw another surgeon, who diagnosed the fracture of the neck of the femur from which she was suffering. The surgical treatment was long and complicated, the difficulty having been greatly increased by the delay. The partial permanent disability was also increased as a result.
In the suit brought by Dame Laurent and her husband for malpractice, Paul Langlois J. of the Superior Court found that there had actually been negligence and held the surgeon and the hospital jointly and severally liable. However, he also found that the plaintiffs themselves had by their negligence contributed to the damage suffered, in a proportion he fixed at one‑quarter. He therefore awarded Dame Laurent a net amount of $22,875 for disability, pain and suffering, and so on. He awarded $6,819.36 to the husband, in part for medical costs and fees, but mainly for care given to his wife and “loss of consortium”.
The hospital and the surgeon appealed and the respondents brought cross-appeals. The Court of Appeal affirmed the judgment of the Superior Court but deducted from the sum awarded to the husband three-quarters of the cost of medical reports obtained before the institution of the proceedings, not for purposes of treatment but to establish the percentage of disability. Dubé J.A., dissenting, although he agreed that the cost of the medical reports should be deducted, would have allowed the cross-appeals and held the hospital and the surgeon wholly liable for the damage suffered.
The hospital and the surgeon both brought appeals as of right to this Court against Dame Laurent, and subsequently, by leave of the Court granted at the hearing, against her husband. There were then cross-appeals by the two spouses against the two appellants, with the result that all aspects of this complex dispute were again put in issue at the hearing, except the surgeon’s negligence. In view of the concurrent findings of the courts of Quebec on this point, it was not disputed.
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The apportionment of liability
I should say at the outset that, in spite of Dubé J.A.’s dissent, I can see no reason for disturbing the finding regarding the apportionment of liability. Negligence in failing to obtain medical care in a situation where it was obviously required is essentially a question of fact. In the case at bar, moreover, there is also a fairly substantial conflict between the version of the facts given by Dame Laurent and that given by the surgeon, especially with respect to the telephone conversation of February 3. The opinion of the trial judge, based in part on his assessment of credibility, is of very great weight, and it appears to me that the majority correctly saw no reason to disturb it.
Liability of the hospital
While admitting that Dr. Théoret was not an employee of the hospital, the Superior Court and the Court of Appeal were both of the opinion that the latter should bear responsibility for his negligence. In his testimony Dr. Théoret himself described the arrangements respecting the operation of the emergency room as follows:
[TRANSLATION] Q. Did this attendance form part of the conditions of your association to the hospital?
A. No, it was voluntary.
Q. Yes. I am not asking you whether it was voluntary, doctor, I am asking you if it was one of the conditions of being a doctor attached to the hospital.
A. No, no, because there were doctors or surgeons of course, since there are only five (5) days in the week, there were of course doctors who were not performing this function because they were not interested in it or for other reasons; the fact remains that there were five (5) doctors in the afternoon, Monday, Tuesday, Wednesday, Thursday, Friday, who were on duty from two o’clock (2:00) until six o’clock (6:00).
…
Q. Dr. Théoret who paid your fees when you were in the emergency room?
A. There were three (3) categories of patients: there were the injured persons who were the responsability of the Workmen’s Compensation Board, and of course then our fees were paid by the Workmen’s
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Compensation Board; there were the patients who arrived with an insurance form, either on that day or at some other time, and the insurance company sent us our fees, either those we asked for or others, usually others that were lower; and then there was the category of patients who did not have insurance and who were sent a statement after a number of days or weeks, and who either paid us or did not pay us—usually they did not pay us.
Next, it is important to note that the contractual relations between doctor and patient that were established in the emergency room of the hospital on January 22 did not end there. The following is extracted from the testimony of Dr. Théoret:
Q. I understand from paragraph seven (7) of your defence that, after prescribing this injection and while waiting for Dame Laurent to find a mattress to lie down until she regained her balance, you told Dame Laurent to get in touch with you in a few days, in paragraph seven (7)?
A. That’s right.
Q. To keep you advised of the progress of her condition—I am still reading from your paragraph seven (7)?
A. Yes.
Q. You considered her to be under your care at that time?
A. Yes, I considered her to be under my care, except that it must be said that very often these injured people who are brought to us at the hospital, especially when they live outside St-Laurent, never come back to see us—that happens very frequently.
It is thus apparent that the negligence which caused the damage suffered by respondents is not limited to the original error. It also includes the doctor’s failure to concern himself enough about his patient’s condition to appreciate the need to see her again, and to obtain the X ray film which would have immediately revealed the fracture and the need for prompt surgery. As time went on without the pain disappearing, the need for a more thorough examination became increasingly evident so much that, from the evidence as a whole, the trial judge felt he had to find that Dame Laurent
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and her husband were themselves at fault for having waited until May 1 to consult another surgeon. One should therefore not overlook the importance of the fault committed by Dr. Théoret when a week after the accident, and later on February 3, he did not give his patient the appropriate advice. I really fail to see how the hospital can be held liable for that fault, and without it the damage would not have occurred or would not have been the same.
Turning now to the initial fault, here again the hospital’s liability appears to me without legal basis. It would have to be based on the last paragraph of art. 1054 C.C.:
Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed.
Since Curley v. Latreille, it is settled law in Quebec that, in the French version of the Code, the words “dans l’exécution des fonctions” are to be given a literal interpretation, a literal meaning corresponding to the English version: “in the performance of the work”. It was expressly noted that this meaning is also that of the common law rule. The broad meaning which the French courts have given the words “dans les fonctions” in art. 1384 C.N., and which results in liability being fixed for acts that are merely performed “on the occasion of work” and are connected to it only by circumstances of time, place or service, has thus been rejected.
In the case at bar the evidence shows no master and servant relationship between Dr. Théoret and the hospital with respect to the professional services rendered by him in the emergency room. The extracts I have quoted show that this was in fact a situation where the doctors who chose to attend were really independent professionals to whom the hospital merely provided an opportunity to establish relations with patients who came to seek their services. No doubt these doctors agreed among
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themselves on the day and time each would be on duty, but they were not there under the orders of a director. They were therefore not employees of an employer. Accordingly, the legal situation was not the same as in Martel v. Hôtel-Dieu St-Valier.
As Rinfret J. said in Moreau v. Labelle, (at p. 206): [TRANSLATION] “Each case in this area must thus be decided on its own facts.” As he pointed out in Grimaldi v. Restaldi (at p. 491): [TRANSLATION] “It (this contention) undoubtedly raises a mixed question of fact and of law, but the solution depends essentially on a proper appreciation of the special circumstances of the case under review.” In Martel, this Court unanimously rejected (at p. 752) the theory according to which [TRANSLATION] “the application to doctors of the ordinary rule regarding the master and servant relationship is irreconcilable with a proper concept of the responsibility in question”. The hospital was found liable for the damage, but only after it had been noted (at p. 752) that:
(1) [TRANSLATION] “The plaintiff had no say in the choice of his anesthetist. The latter was selected by the director of the hospital’s anesthesia department.”
(2) “The anesthesia department was at that time a department of the hospital and not a separate undertaking.”
(3) “The anesthetist in question provided his care as he was obliged to by his contract of employment with the hospital and as did the other members of the staff: radiologists, laboratory technicians, nurses, orderlies and so on.”
In Villemure v. Turcot et al., where the majority adopted the dissenting opinion of Choquette J.A. in the Court of Appeal,, the latter based his reasoning on Martel and considered that despite any differences there might be in the facts, the conclusion should be the same. I do not think that
[Page 613]
from this, it should now be concluded that the majority, in endorsing this opinion, rejected the very basis of the decision in Martel, that it is by the ordinary rules applicable to all workers generally that, in each particular case, it is to be decided whether a doctor acted as an employee of a hospital. As André Nadeau observes (Traité pratique de la responsabilité civile délictuelle, at p. 387):
[TRANSLATION] …the essential criterion of employer-employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out his work.
In a case where the question was whether a worker was a contractor or an employee, Rinfret J. said, speaking for the Court (Quebec Asbestos Corp. v. Couture, at p. 170):
[TRANSLATION] The contract we have to interpret does not reserve to Quebec Asbestos Corporation the right to give Couture orders and instructions as to the manner of carrying out the duties that he accepted. This right is the basis of the authority and subordination without which no one can really be an employer.
The hospital contract is not to be interpreted a priori, but by considering the legal effect of the relations established between the parties. The Court is not called upon in the case at bar to determine the legal status of the emergency room, any more than that of the operating room. It only has to decide whether, in the circumstances, Dr. Théoret was acting as an employee of the hospital when he treated Dame Laurent. As we have seen, the evidence on this point is unequivocal: it was as a physician acting on his own account that the doctor received this patient and undertook to treat her, also telling her to get in touch with him after a certain length of time. On the same day an entirely different legal situation may well have arisen in other hospitals. In fact, on the basis of what one witness said of the operation of another emergency department at the time, it is quite possible that a different conclusion would be reached in its case. In the case at bar, the medical care was given to Dame Laurent under a contract, not with the hospital, but with Dr. Théoret. Since it was noted in Curley v. Latreille that the Quebec
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rule is identical on this point to the common law, I will take the liberty of quoting the following statement of Aylesworth J.A. of the Ontario Court of Appeal, cited by Hall J. in The Trustees of the Toronto General Hospital v. Matthews, (at p. 439):
The cases under review both in this country and in England make it clear, I think, that the liability of a hospital for the negligent acts or omissions of an employee vis-à-vis a patient, depends primarily upon the particular facts of the case, that is to say, the services which the hospital undertakes to provide and the relationship of the physician and surgeon to the hospital.
The husband’s claim
As we have seen, the courts of Quebec allowed to plaintiff Eugène Laurent as damages caused by negligence towards his wife, certain amounts for medical fees and costs, as well as for care given to his wife and “loss of consortium”. On his appeal the surgeon contends that the word “another” in art. 1053 C.C. applies only to the person to whom the damage is directly caused—in other words, in the case of bodily injury, to the person who suffered it. In France art. 1383 of the Code Napoléon is not interpreted in this manner; however, it should be noted that there is no provision in that Code corresponding to art. 1056 of the Quebec Civil Code.
It was submitted that the latter provision must serve to interpret the earlier one, and that it implies a limitation because the enumeration it contains is limitative. This is not doubtful, but is it to apply beyond the case contemplated, namely that in which the victim of the offence or quasi-offence “dies in consequence, without having obtained indemnity or satisfaction”? Such is the question which arises out of those provisions which I shall now cite, quoting the first paragraph of art. 1056 immediately after art. 1053.
Art. 1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
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Art. 1056. In all cases where the person injured by the commission of an offence or a quasi-offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi‑offence, or his representatives, all damages occasioned by such death.
The first case to be examined is Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie. The Court of Appeal had affirmed the judgment of the Superior Court awarding the community, to which the injured brother was bound by a vow, $2,236 for medical expenses and $1,763 for loss of his services. In this Court Anglin C.J. and Smith J. were of the opinion that the judgment should be affirmed, but Migneault and Rinfret JJ. took the opposite view. The opinion which prevailed was that of Lamont J., that only the claim for medical expenses should be allowed. The case was taken to the Privy Council, which held that the action was prescribed under art. 2262(2) C.C. It did not rule on the merits, apart from adopting the following passage from the opinion of Dorion J.A. in the Court of Appeal (at p. 301):
[TRANSLATION] Brother Gabriel was bound by a vow to respondent, to which he owed his time and his work, and the latter was also bound to the brother, to whom it owed in return food, lodging and maintenance. No doubt one can only engage one’s services for a limited term (Art. 1667 C.C.): but it is not a hire of services that is involved here. This is a commitment sui generis which the law perhaps does not sanction directly but which it does recognize, and legalize by granting a corporate charter to the institution for which religious vows are the means of recruitment and the condition of existence.
In this Court, as in the Court of Appeal, the majority opinion in Regent Taxi thus accepted that a third party who was obliged to pay the medical expenses incurred by the victim of an offence or quasi-offence was entitled to recover such amount from the person who caused the damage by his fault. In Her Majesty the Queen v.
[Page 616]
J.L. Sylvain and Guy Sylvain, this Court had to consider a claim made by the Canadian government in the Exchequer Court as a result of injuries suffered in an accident by members of the armed forces. The government relied on s. 50 of the Exchequer Court Act, R.S.C. 1952, c. 98, which provided that “for the purpose of determining liability.” a person who was a member of the armed forces “shall be deemed to have been… a servant of the Crown”. The total amount claimed consisted of $3,145.05 for medical care and $1,516.23 for pay during “unavailability”. Having said, for reasons that need not be commented upon, that despite Regent Taxi “the question remains open”, the Court unanimously concluded in the following terms (at pp. 173 and 174):
[TRANSLATION] …in civil law the unavailability of a servant or the loss of his services is not sufficient per se and without more to constitute damages giving rise, in law, to a remedy, and, …in themselves, the obligations imposed contractually or by statute on the master for the benefit of the servant cannot serve as a basis for or a measure of damages, but as suggested in Marty and Raynaud, Droit civil, 1962, Vol. 2. p. 383, the damages, if any, must be looked for in the results of the loss, temporary or untimely, of the services, “and in their real consequences to he assessed in each case”.
The dispute as formulated by the parties, so appellant states in her factum, “raises the question of the existence in the province of Quebec of a direct action for compensation to the benefit of the Crown, the counterpart of which—although the analogy is not complete—would be for the common law provinces the action per quod servitium amisit”. To this question I would give a negative reply, and limiting the preceding observations to this particular case, I would say that appellant has not succeeded, as she tried to do, in justifying her claim solely on the basis of art. 1053 of the Civil Code.
It is thus apparent that the decision in Sylvain dealt solely with the case of an employer who has been deprived of the services of his employee through injuries due to the fault of a third party and has been obliged to pay the required medical expenses. The “servitium” mentioned is that which a servant owes his master. It does not seem to me
[Page 617]
that there is any reason for seeing in this a general interpretation of the word “another” in art. 1053 C.C. I think it must rather be said that this Court refused to find in the detriment suffered, which resulted solely from relations assimilated to contractual relations, damages caused by the tortious act which brought it about.
The case of the victim’s husband appears to me entirely different, since it depends on a relationship established by the civil status of the spouses, their marriage; this is in principle an indissoluble union and, in the absence of other matrimonial covenants, of which there is no evidence, it gave rise to community of property under the law in force at the date as of which the case is to be decided: Lister v. McAnulty was a case of the same nature. Plaintiff was claiming damages as the result of an automobile accident in which his wife had been seriously injured. The Court unanimously admitted the right of the husband to recover from the author of the offence the amount of the medical expenses incurred together with anticipated future expenses. Hudson J. said (at p. 327):
The plaintiff himself suffered no physical injury in the accident. His loss was indirect. At one time the application of article 1053 C.C. to such a person was open to question. However, by a majority decision of this Court in the case of Regent Taxi and Transport Co. v. La Congrégation des Petits Frères de Marie, this was settled in the plaintiff’s favour.
Although the judges in the majority denied any compensation for loss of “consortium” or “servitium”, this was not because they differed on this principle, but solely because they came to the conclusion that the civil status of the spouses was governed by the law of Massachusetts, where they were domiciled and where the husband, it was said, could have no claim on such basis. Nothing indicates that they would have differed from the dissenting judges if they had decided this part of the case under the law of Quebec. On the contrary, despite evidence that the law of Massachusetts did not allow the husband to claim more than the expenses already incurred, they awarded a sub-
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stantial sum for future expenses, being of the opinion that in the case of such expenses the proper law was that of Quebec, where the accident had occurred and the action had been brought. It thus seems certain that they did not intend to deny a husband domiciled in Quebec the right to recover compensation for being deprived of the succor and assistance his wife owes him under art. 173 C.C.
173. Husband and wife mutually owe each other fidelity, succor and assistance.
On this point Mayrand J.A. quite correctly said:
[TRANSLATION] …the gratuitous nature of mutual aid within the family is not intented to relieve third parties of their liability toward a member of the family. Appellants have made plaintiff’s obligation to give his wife succor and assistance more onerous, and they are liable for this.
I therefore see no reason to differ from the opinion of the Court of Appeal on this point, but I should add two observations.
In the first place, counsel for the surgeon had to admit at the hearing that the result of his submission on the interpretation of art. 1053 was that, in the case of bodily injury caused to a woman married under community of property, the author of the offence was relieved of any obligation for medical costs. The woman cannot claim those expenses because she does not incur them, art. 1280(5) making them the responsibility of the community, that is of the husband so long as the community subsists. This means that if the husband cannot claim them either, then no one can.
Secondly, I must point out that I am not overlooking art. 1279a then in force, but in my opinion, that provision, which I will quote, does not say which of the spouses the compensation belongs to.
Art. 1279a. Compensation received by a consort after the celebration of marriage as damages for injury, for personal wrongs or for bodily injuries, as well as the right to such compensation and the action consequent thereon, shall be individual property of the consort.
[Page 619]
Consequence of the common fault
At the hearing of the husband’s cross-appeal, counsel contended that the compensation due to the husband should not be reduced by reason of his wife’s fault. In my view, this argument is to be rejected for the same reason that a reduction of the compensation by reason of the victim’s fault, was held to be proper, the victim has died. Persons claiming a remedy under art. 1056 C.C. are undoubtedly exercising a right that is personal to them and that did not devolve upon them as heirs or assigns of the victim. Even if his estate devolves upon them, they can escape liability for his fault by refusing the estate. However, it has been held unanimously that, in any case, the compensation payable under art. 1056 C.C. must be reduced in proportion to the fault of the victim: Rainville Automobile Ltd. v. Primiano. At pp. 424-425, one reads:
[TRANSLATION] It is therefore immaterial that the beneficiaries of the provision in art. 1056 are made creditors of the obligation arising from the offence or quasi-offence by the operation of the provision itself, instead of becoming creditors as representatives of the victim. The obligation cannot be increased by the fact that this right of action sanctioned by art. 1056 is both a personal and independent right. The basis of liability for the act which produced the damage and the basis for the resultant obligation are not altered thereby. They are those provided for in the articles preceding art. 1056, in particular art. 1053.
The result, therefore, is that if the event which produced the damage, and which is relied on by the beneficiaries of the provision, is the act of the victim alone, they have no remedy; and that if this event which produced the damage is the result of the combined fault of the victim and the defendant, the defendant, having only in part contributed to cause the event, cannot, owing to the absence of joint and several liability, under art. 1056 as well as under art. 1053, be held fully liable for it and be obliged to compensate for the entire injury.
This reasoning obviously applies equally to the case of the husband who claims compensation by reason of bodily injuries suffered by his wife. Furthermore, art. 1294 C.C., enacted in 1964, having made it possible to recover condemnations for crimes or offences from the property of the community, it is hard to see why the wife’s fault
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could not be set up against the husband, the head of the community.
The costs of expert opinions
The Superior Court had awarded plaintiff Eugène Laurent three-quarters of a sum of $325 he paid for medical reports obtained for the purpose of ascertaining his wife’s degree of disability. The Court of Appeal unanimously struck down this part of the compensation and allowed the appeal on this ground alone. After reviewing the cases on the question, Mayrand J.A. wrote, with the concurrence of his colleagues, at pp. 565-566:
[TRANSLATION] The expenses occasioned by these medical reports are rather a result of the refusal of defendants-appellants to carry out voluntarily their obligation to pay for the injury caused. To penalize a defendant for having obliged a plaintiff to appeal to the courts, the law provides only one sanction: an order to pay costs, that is lawyers’ fees, court costs and witness fees in accordance with the established tariff. Out-of-court expenses, the time lost with the lawyer or at the hearing, experts’ fees and related expenses such as travelling costs, which no litigant can avoid, must be borne by plaintiff, without recourse against defendant.
In the Superior Court, Langlois J. had said:
[TRANSLATION] Plaintiff claims for the accounts of three medical experts he called as witnesses to establish the defendant’s liability and the after-effects of the injury… For their attendance in Court plaintiff cannot claim more than what is allowed as expert witnesses’ fees. In the case at bar, however, the Court should award $125.00 for Dr. Gauthier and $200.00 for Dr. Mackay, namely their fees for examining the female plaintiff and for their reports. There is nothing in this respect concerning Dr. Cruess.
Despite the consistent line of cases in the Court of Appeal since Proulx v. Cité de Hull, I cannot accept that the victim of a quasi-offence should not have the right to recover as damages the disbursements he had to make to establish the extent of his injury. The trial judge appears to have exercised his discretion judiciously, weighing the evidence on this point in a manner that is unlikely to favour the abuses feared by the Court of Appeal.
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Conclusion
For the foregoing reasons I would allow the appeal of Hôpital Notre-Dame de l’Espérance against respondents, reverse the judgment of the Court of Appeal and dismiss the action as against it, as well as the cross-appeal, but in the circumstances it seems to me fair to do so without costs. I would dismiss with costs the appeal of Rodrigue Théoret and allow without costs the cross-appeal brought against him, and restore the judgment of the Superior Court against him.
Appeal of Hôpital Notre-Dame allowed and cross-appeal dismissed, without costs.
Appeal of Théoret dismissed with costs and cross-appeal allowed in part without costs.
Solicitors for the appellant, Hôpital Notre-Dame: Pagé, Beauregard, Duchesne, Renaud & Desmarais, Montreal.
Solicitors for the appellant, Théoret: Martineau, Walker, Allison, Beaulieu, MacKell & Clermont, Montreal.
Solicitors for the respondents: Gilbert, Magnan & Marcotte, Montreal.
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