Hôtel-Dieu de Montréal v. Couloume, [1975] 2 SCR 115

Supreme Court of Canada

Hôtel-Dieu de Montréal v. Couloume, [1975] 2 S.C.R. 115

Date: 1974-05-27

Hôtel-Dieu de Montréal (Defendant) Appellant;

and

Jean Couloume (Plaintiff) Respondent.

1974: March 20, 21; 1974: May 27.

Present: Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Fault—Fracture of the hip—Unforeseen epileptic seizure—No presumption of fault.

Respondent, after being hospitalized initially in appellant institution suffering from rupture of a cerebral aneurism in the right hemisphere, was re-admitted for observation and examination because his condition had worsened. He then for the first time began to have epileptic seizures and attempted to leave his bed, which prompted his doctor to order that sides be installed. Because he complained of pain in his thigh, an X-ray was taken and it indicated a fracture of the right hip resulting probably from a fall from his bed. The judgment of the Superior Court dismissing respondent’s action was reversed by the Court of Appeal, with a dissent. Hence the appeal to this Court.

Held: The appeal should be allowed.

The fundamental question is as follows: Has it been shown that the person whose responsibility is in issue was the author of the fact that caused the damage? In the case at bar the patient himself probably caused the fracture by throwing himself out of his bed. The accident probably occurred in the course of an unexpected epileptic seizure suffered by the patient which, so far as is known, was happening for the first time. There is no basis, therefore, for a finding of fault attributable to an employee of the hospital. The facts proven do not call for the application of the presumption of fault applied in Martel v. Hôtel-Dieu St. Vallier, [1969] S.C.R. 745.

Parent v. Lapointe, [1952] 1 S.C.R. 376; Cardin v. City of Montreal, [1961] S.C.R. 655; Martel v. Hôtel-Dieu St. Vallier, [1969] S.C.R. 745; Sisters of St. Joseph v. Villeneuve, [1975] 1 S.C.R. 285, reversing [1972] 2 O.R. 119, referred to.

APPEAL from a judgment of the Court of

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Queen’s Bench, Province of Quebec[1], reversing a decision of the Superior Court dismissing the action. Appeal allowed.

Claude Tellier, Q.C., for the defendant-appellant.

Claude Dugas, Q.C., for the plaintiff-respondent.

The judgment of the Court was delivered by

PIGEON J.—This appeal is against a judgment of the Court of Appeal of Quebec reversing, Rinfret J.A. dissenting, the judgment of the Superior Court dismissing respondent’s action for lack of evidence of negligence attributable to the hospital.

In 1962 plaintiff was hospitalized for two months in the appellant institution, suffering from rupture of a cerebral aneurism in the right hemisphere. He then had to take a year’s rest because he was paralyzed on his left side. After this rest he was able to return to work. Towards the end of May 1965 his doctor found a worsening condition, numbness in the upper and lower left limbs, intermittent headaches and so on. Respondent was re-admitted to the appellant institution for observation and examination on June 2, 1965.

On June 9 Dr. André Barbeau, who was responsible for the patient at that time, found that he was extremely nervous, sought a consultation with a psychiatrist and asked for an arteriogram. The patient refused to submit to this examination, or to a lumbar puncture. Between the 11th and 12th the patient for the first time began to have epileptic seizures. Dr. Barbeau, realizing that his patient had attempted to leave his bed, ordered that sides be installed. The patient’s agitated and confused condition not only persisted, he also began to complain of pain in his right thigh. Dr. Barbeau ordered an X-ray, which was taken on June 17, and which indicated a fracture of the right hip. On this point the trial judge said:

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[TRANSLATION] From the evidence submitted it is clear that this fracture was the result of a fall plaintiff apparently made about June 12. There is no way of ascertaining the date and circumstances of this fall, as plaintiff could not remember it.

The Court of Appeal did not question the validity of this finding, but felt it should hold the institution liable by application of the rule on presumptions of fact stated by Taschereau J. in Parent v. Lapointe[2], at p. 381, a rule held applicable to medical responsibility in Cardin v. City of Montreal[3], and again applied in Martel v. Hôtel-Dieu St. Vallier[4].

With respect, I must say that the ambit of this rule was entirely misunderstood, as Rinfret J.A. clearly indicated in his dissenting reasons, which it might suffice for the Court to adopt. However, since Deschênes J.A. relies essentially on what he calls the “added clarification” in the Martel decision, I feel I should reproduce in toto the paragraph in which the remarks of Taschereau J. are quoted (pp. 748-749):

[TRANSLATION] Then, it should be noted that at the trial the defendants admitted that the injury sustained by the plaintiff was caused by the caudal anaesthesia administered to him. However, they challenge the validity of the conclusion drawn from this admission, concerning the existence of a fault in the administration of the anaesthesia. The principle on which this conclusion was based was formulated as follows by Taschereau J. (as he then was) in a unanimous judgment of this Court, Parent v. Lapointe [1952] 1 S.C.R. 376, at p. 381, [1952] 3 D.L.R. 18.

When, in the normal course of things, an event ought not to take place, but happens just the same, and causes damage to another, and when it is evident that it would not have happened if there had not been any negligence, then it is for the author of this fact to show that there was an unknown cause, for which he cannot be held responsible and which is the source of the damage. If the one who had control of the thing succeeds in establishing to the satisfaction of the Court the

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existence of an extrinsic fact, he has the right to the benefit of exoneration.

It is important to note how Taschereau J. describes the person against whom the presumption operates: “it is for the author of this fact”, in other words the author of the fact which caused the damage. In the Parent case, the author of the fact was the driver of the car; in Cardin, it was the doctor who did the vaccination; in Martel, it was the anaesthetist who gave the injection. As is stated right at the beginning of the paragraph I have quoted, this was admitted in that case. This is why it is said further down, at the beginning of the passage quoted by Deschênes J.A. (the “clarification”) (at p. 749):

[TRANSLATION] The only point to be considered, therefore, is whether the evidence was sufficient to support the conclusion that in all probability what happened would not have occurred in the absence of fault.

This sentence only states what the situation was in that case in the light of the admitted facts. It is not a statement of a general rule, and in no way modifies the rule laid down in Parent v. Lapointe. Yet, after also quoting that rule verbatim, Deschênes J.A. says:

[TRANSLATION] In the light of these principles, which have been well settled by the courts, the following questions must be asked:

(a) was there an abnormal event during appellant’s hospitalization?

(b) did that event cause damage to appellant?

(c) is it clear that the event would not have happened if there had not been negligence on the part of respondent?

(d) if so, has respondent proven that the injury should rather be attributed to an intervening cause for which it cannot be held responsible?

It is easy to see that this statement is not in accord with that of Taschereau J. It overlooks the fundamental question: is the person whose responsibility is at issue the author of the fact? In Martel, this question did not arise since it was admitted that the anaesthetist was the author of the fact which caused the damage. So

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far as the hospital was concerned, it was held liable in its capacity of employer, for damage caused by its employee in the performance of his duties, because this Court concluded that such was the anaesthetist’s position in the circumstances of the case, not because the court applied a presumption of fault against the institution. Nowhere in that case, or in Parent and Cardin, was there any suggestion of applying this presumption to anyone other than the author of the prejudicial event.

In this connection, it seems proper to point out that recently this Court[5] reversed the judgment of the Court of Appeal of Ontario in Villeneuve v. Sisters of St. Joseph of Sault Ste. Marie[6] holding the hospital jointly liable with the anaesthetist for the consequences of an injection of pentothal into an artery instead of a vein. The anaesthetist was not an employee of the hospital, and his professional negligence was only shown by the result of the injection. The majority in this Court held that liability for the accident could not also be imputed to the nurses responsible for restraining the patient, a young struggling child.

In the case at bar, there is no evidence that the author of the fact which caused the damage was an employee of the hospital. On the contrary, it was found by the trial judge that the patient himself probably caused the fracture by throwing himself out of his bed, and the Court of Appeal did not differ on this point. It seems clear that the accident occurred in the course of an epileptic seizure suffered by the patient, which so far as is known was happening for the first time. The doctors had not foreseen such a thing, and they are not charged with professional negligence.

It follows, therefore, that in the case at bar there is no basis for a finding of fault attributable to an employee of the hospital, and the

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facts proven do not call for the application of the presumption applied in Martel.

I accordingly conclude that the appeal should be allowed, the judgment of the Court of Appeal set aside and the judgment of the Superior Court restored with costs throughout against the respondent.

Appeal allowed with costs in all Courts.

Solicitors for the defendant, appellant: Desjardins, Ducharme, Desjardins, Tellier, Zigby & Michaud, Montreal.

Solicitors for the plaintiff, respondent: Dugas, Dugas & Gagnon, Joliette.