Sisters of St. Joseph v. Villeneuve, [1975] 1 SCR 285

Supreme Court of Canada

Sisters of St. Joseph v. Villeneuve, [1975] 1 S.C.R. 285

Date: 1974-04-02

The Sisters of St. Joseph of The Diocese of Sault Ste. Marie, carrying on business under the name and style of St. Joseph’s Hospital (Defendant) Appellant;

and

Pierre Paul Villeneuve, an infant by his next friend, Rhéo Paul Villeneuve and the said Rhéo Paul Villeneuve, personally (Plaintiffs) Respondents;

and

Dr. W. Frank Armstrong (Defendant) Respondent;

and

Dr. William A. Keech, Dr. Gordon T. Ross, Dr. Kenneth B. Brown, Dr. R.M. Jackson and Dr. D.T.M. Paine Defendants.

1973: October 19, 22; 1974: April 2.

Present: Judson, Ritchie, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Physicians and Surgeons—Negligence—Responsibility of anaesthetist—Sodium pentothal injected into artery.

The defendant, respondent was asked by a surgeon to administer the anaesthesic to the infant plaintiff respondent, a child of four years eight months old, when it was found that the anaesthetist with whom arrangements had previously been made was not available. The child was obviously disturbed and terrified. It became evident that the anaesthetic had entered and damaged the artery causing serious circulatory problems which necessitated amputation of the child’s right hand. Two nurses employed by the appellant were assisting the physician and restraining the frightened child. The trial judge in finding the anaesthetist liable awarded special damages of $7,639.90 and general damages of $61,500. This judgment was varied in the Court of Appeal which found both the anaesthetist and one of the nurses negligent and apportioned the damages as against the anaesthetist and the appellant hospital.

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Held (Spence and Laskin JJ. dissenting): The appeal should be allowed.

Per Judson, Ritchie and Pigeon JJ.: There was no evidence to justify the conclusion of the Court of Appeal that there was movement of the arm but, even if there was movement of the arm which the nurses failed to control, the responsibility is entirely on the doctor. He should not have gone on with the attempt to inject sodium pentothal in the vein that he had chosen.

Per Spence and Laskin JJ. dissenting: The Court of Appeal was on the evidence justified in finding negligence on the part of one of the nurses for her failure to control the patient. That nurse was a fulltime employee of the appellant hospital and the appellant is liable in negligence.

APPEAL from a judgment of the Court of Appeal for Ontario[1] varying the judgment of Donohue J. at trial. Appeal allowed with costs, Spence and Laskin JJ. dissenting.

J.D. Bell, Q.C., and K.C. Vaughan, for the appellant.

E.W. Sopha, Q.C., and F.A. Donnelly, for the respondent, Paul Villeneuve.

E.P. Newcombe, Q.C., and A.M. Butler, for the respondent, Dr. Armstrong.

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

JUDSON J.—My opinion is that the Court of Appeal should not have varied the judgment at trial by dividing the responsibility for this accident between the anaesthetist and the hospital. I would allow the appeal and restore the judgment at trial which imposed the entire responsibility on the anaesthetist.

There was no allegation of negligence on the part of the nurses in Dr. Armstrong’s statement of defence, nor in his evidence, nor in the evidence of the experts, nor in the hospital records. The trial judge noted this. He said that if there was any failure of care on the part of

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the nurses, he would have expected Dr. Armstrong to say so. His conclusion was that he did not find any negligence on the part of the nurses. The following extract from his reasons deals with this point: ([1971] 2 O.R., p. 606)

“The only suggestion of external cause which comes from Dr. Armstrong is his evidence at trial that the patient raised his arm at the moment of injection or, as he told Dr. Brown, that the patient had lurched during the pentothol injection. Here then were two versions of movement and Mrs. Waddleton does not remember any movement. On this evidence I find that Dr. Armstrong has not succeeded in establishing to my satisfaction the existence of some extrinsic factor. Further, in assessing this evidence of movement by the patient, it is necessary to consider whether, if it happened, its happening was due, in the circumstances of this case, to failure on the part of Dr. Armstrong to prevent its happening. It is clear enough that the injection was being made in a critical area. It is also clear that the patient was in a very excited state. As one witness said, complete immobility was desirable. If this could not be achieved with the help of three persons, then the attempt to inject ought to have been abandoned.”

Here there is a plain refusal on the part of the trial judge to accept Dr. Armstrong’s evidence that there was any movement at all. But, even accepting the suggestion that there was movement, the responsibility is still entirely on the doctor. He should not have gone on with the attempt to inject the sodium pentothal in the vein that he had chosen. The child was seriously upset and struggling. Evidence of movement by the child in these circumstances would not be evidence of lack of care on the part of the nurses.

The reasons for judgment delivered in the Court of Appeal go far beyond the limits imposed by the trial judge. They found that there was movement of the arm and that this caused the needle, which was being inserted into the vein, to pierce the brachial artery. I quote two extracts from their reasons for judgment on this point: ([1972] 2 O.R., pp 122 & 124)

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“There is some discussion as to the manner in which it occurred but in any event it is clear from what followed that the motion of the arm caused the needle, which was being inserted into the vein, to pierce the brachial artery and cause fluid to be injected into the lumen of the artery.”

“There can be no doubt on the evidence that the sudden motion of the child’s arm, found by the trial Judge to have occurred, affected the direction of the needle which was being inserted. The subsequent results make that clear. There is also evidence that the parties present were having marked difficulty in restraining the child prior to the injection of the pentothal. The evidence in that respect together with the fact that movement was present when the injection was made was such that the Judge could accept, if he saw fit, and on it base his first finding.”

There was in my respectful opinion no evidence whatever to justify these conclusions. The negligence which the trial judge found on the part of the doctor was in proceeding with the injection when he realized how restless and upset the boy was. The nurses were doing their best and cannot be blamed for the doctor’s decision to go ahead despite the risk of movement. The doctor was in complete charge of the situation and the total responsibility must rest on him.

I would therefore set aside the judgment of the Court of Appeal and restore the judgment of the trial judge. It is agreed among the parties that the amount of the judgment be reduced from $63,500 to $61,500. The hospital is entitled to its costs in this Court and in the Court of Appeal.

The judgment of Spence and Laskin JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on December 22, 1971. By that judgment, the Court of Appeal for Ontario allowed the appeal in part and varied the judgment of Donohue J. pronounced on February 17, 1971.

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The infant plaintiff, born on August 21, 1963, was taken by his mother to his physician, the defendant Dr. William A. Keech, who had been the family doctor for many years. Dr. Keech discovered that the infant had an inguinal hernia and a small hydrocele so he recommended the appropriate surgery for the treatment of that condition. The infant’s parents agreed and on May 27, 1968 the infant was admitted to St. Joseph’s Hospital where the defendant Dr. Keech enjoyed privileges, including the right to perform the necessary surgery. This surgery was scheduled for the morning of May 28 but was postponed until the following day because it was discovered that the infant had consumed a glass or two of water that morning prior to his admission to the hospital. On the following day, May 29, 1968, the infant plaintiff had been given some pre-operative sedation and was brought down to the operating room. The defendant Dr. Keech had previously arranged to have a certain Dr. Sinclair administer the anaesthetic but it was found that Dr. Sinclair was not available and Dr. Keech sought the services of another physician, the defendant Dr. Frank Armstrong, for that purpose. The defendant Dr. Armstrong was not a certified anaesthetist but he had administered many anaesthetics and there has been no finding in this action against his qualifications.

The defendant Dr. Armstrong questioned the defendant Dr. Keech whether there were any problems in giving the infant plaintiff an anaesthetic. Dr. Keech replied in the negative and then Dr. Armstrong proceeded to the operating room where he saw the infant plaintiff for the first time. There had been, of course, no opportunity for the usual and prescribed examination by the anaesthetist on the previous day. Dr. Armstrong, however, checked the infant’s pulse and his heart beat with a stethoscope and finding everything satisfactory proceeded to anaesthesize the infant.

The infant who then was only four years and eight months old had become most terrified at the unusual surroundings of a hospital, was restless and crying, and indeed screaming. Mrs. C.

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Waddleton, who was the circulating nurse in the operating room, and who had wheeled the infant plaintiff into the operating room, testified:

Q. Was he screaming and crying when he was out there [the corridor]?

A. Yes.

Q. Continued it?

A. Yes.

Q. And is it fair to say, or correct to say, that from the time you first saw him in the corridor until he went to sleep under the injection that he continued to scream and cry?

A. Yes, more so when I brought him into the room, though.

Q. But did he continue to?

A. Yes.

Q. Make sounds?

A. Yes.

Q. And show signs of upset?

A. Yes, he did.

Q. Until he went to sleep under the anaesthetic agent?

A. Yes.

In these circumstances, the method of anaesthetizing the patient was a problem for Dr. Armstrong. He determined that despite the child’s obviously disturbed condition he should use the drug known by various names but which is commoly referred to as sodium pentothal which, on injection, renders the patient unconscious in a very short time so that the following and complete anaesthetic may be administered. This decision was subject to some criticism by at least one of the expert witnesses who was of the view that a preliminary anaesthetic of nitrous oxide delivered with the aid of a face mask would have been preferable but other expert witnesses expressed the view that they would have chosen injection by sodium pentothal.

The learned trial judge has concluded that the defendant Dr. Armstrong cannot be criticized for his choice of the sodium pentothal injection method.

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Dr. Armstrong then was faced with the problem of where in his patient’s body the injection should take place. There are evidently a choice of several veins. Since it is necessary that the injection be into a vein, it is imperative that the pentothal should not be introduced into an artery. The various possible sites for the injection were in the back of the hand, the wrist, the foot, the lateral aspect of the upper arm, and the vein in the crease of the elbow known as the antecubital fossa. Dr. Armstrong found no suitable vein in the back of the hand or the lateral aspect of the arm. However, there was a vein standing out and visible close to the surface in the right antecubital fossa. The infant patient had been placed on the operating table and his right arm was extended fully at right-angles to his body. Mrs. Waddleton, the circulating nurse who had brought her patient into the operating room, as was her duty, assisted Dr. Armstrong. It was, therefore, her duty to restrain this restless and frightened infant patient so that the injection could take place.

As I have said, it was imperative that the sodium pentothal should not be introduced into an artery. At the particular area chosen for the injection, this right antecubital fossa, the vein into which it was proposed that the injection be made, was very close to the brachial artery. In fact, the median cubital vein and the brachial artery cross at one point about two millimetres apart. Therefore, in order to avoid any possibility of the injection needle even touching this brachial artery it is, as the witnesses conservatively described it, “highly preferable” that the arm be kept perfectly immobile during the injection. Therefore, Mrs. Waddleton, the circulating nurse, held the infant patient’s right arm at the wrist and above the elbow. A second nurse, Mrs. Tomimico, had been outside the operating room and was attracted by the sounds of the boy’s screaming. She entered the operating room and, again, as was her duty, assisted in holding the infant. Mrs. Tomimico performed this task on the other side of the table by holding the infant’s left shoulder. The defendant Dr. Armstrong, with his left hand, held the

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infant plaintiff’s right elbow and then with his right hand proceeded to insert the needle. Dr. Armstrong then drew back the plunger of the syringe and noted that there flowed into the syringe a small amount of venous blood which indicated to Dr. Armstrong that the needle had pierced the vein. Had it merely pierced interstitially then there would have been no flow-back and if the needle had pierced the artery there would have been a flow-back of arterial blood which would have pulsated. Having thus assured himself that the needle had reached the desired area, Dr. Armstrong removed the tourniquet and then compressed the syringe so as to drive through the needle and into the infant’s body the sodium pentothal mixture. At this particular moment, the infant plaintiff, who was still very restless and disturbed, made a movement described by various witnesses in various words.

There appears to be a unanimity amongst the witnesses that this movement was, in fact, a raising of the right arm from the shoulder with no flexing at the elbow, that is, that the right arm had been fully extended prior to the procedure having been commenced and remained fully extended throughout the injection and thereafter. Dr. Armstrong, under these circumstances, felt that the position of the needle had not been disturbed and continued the injection. The infant plaintiff became unconscious almost immediately. Dr. Armstrong left the patient’s side and went to the patient’s head and proceeded to administer the usual complete anaesthetic. Dr. Keech entered the operating room and the operation proceeded.

There is a very serious contradiction in the testimony of Dr. Armstrong as to whether he observed the patient’s forearm at any time after he had completed the injection and whether he noticed any blanching. At trial, Dr. Armstrong was very positive that he had observed the hand and that he had observed no blanching. On examination for discovery, Dr. Armstrong admitted that he never even at that time or in the subsequent performance of the operation ever looked at the infant plaintiff in order to

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determine whether blanching had taken place. In any event, he saw no blanching and no blanching was observed until, in the recovery room after the operation had been completed, he observed it. Then, and the learned trial judge found for the first time, Dr. Armstrong informed Dr. Keech of the incident which had occurred during the course of the injection and suggested that the infant plaintiff’s arm be carefully watched.

The facts after this moment may be very quickly summarized, for at trial the action was dismissed as against the defendants except Dr. Armstrong and on appeal the only other defendant against whom liability was assessed was the defendant the Sisters of St. Joseph of the Diocese of Sault Ste. Marie, carrying on business under the name of St. Joseph’s Hospital.

It is sufficient to say that no subsequent treatment, either in the St. Joseph’s Hospital in North Bay by the staff doctors who were called in to carry out such treatment nor in the Hospital for Sick Children in Toronto was successful and eventually the infant plaintiff had to have his right hand amputated and a prosthesis applied.

The learned trial judge awarded damages in favour of the infant plaintiff in the sum of $61,500 and in favour of his father for expenses and disbursements in the sum of $7,639.90, and although objection was taken upon the appeal to the amount of general damages awarded, the Court of Appeal refused to disturb that amount and in this Court no reference was made to quantum of damages.

The defendant Dr. Armstrong appealed to the Court of Appeal for Ontario against the finding of the learned trial judge that he had been negligent and against the finding that the present appellants, the Sisters of St. Joseph of the Diocese of Sault Ste. Marie, carrying on business under the name and style of St. Joseph’s Hospital, had not been negligent.

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The infant plaintiff also appealed against the dismissal of the action against the defendants other than Dr. Armstrong.

The Court of Appeal for Ontario affirmed the judgment at trial in so far as it found liability as against the defendant Dr. Armstrong and also affirmed the dismissal of the action against the defendant doctors other than Dr. Armstrong.

The Court of Appeal, however, accepted the argument of counsel for the infant plaintiff, there an appellant, that there should also be judgment against the Sisters of St. Joseph as operating the hospital. Counsel for the infant plaintiff as appellant argued that the hospital should be liable upon three different grounds. The first of these grounds was an allegation that there must have been an over-strength solution of sodium pentothal administered due to the negligence of the operating room nurse; secondly, that there was a general lack of direction in the organization of the operating room, and, thirdly, that failure on the part of the two nurses who assisted Dr. Armstrong in immobilizing the child’s arm constituted negligence on their part for which the hospital was responsible. The Court of Appeal accepted only the third ground in these words:

Upon the third ground, however, it is common ground that it was the duty of Nurse Waddleton as a servant of the hospital to assist the doctor. While she and the nurse who was assisting her were obviously, and quite understandably, having substantial difficulty in restraining this frantic child it is to be remembered in this instance that the child was but four years of age and is said to have weighed but 37 pounds. The inference must be with three adults restraining him, Nurse Waddleton holding his right hand, arm and elbow, and Dr. Armstrong holding the elbow as well that, failing some negligence on the nurse’s part, the boy could not have moved that arm. In view of the fact that the trial Judge has found failure on the part of the doctor to secure such immobility, something which the doctor and other physicians considered so necessary, it must follow that the failure attributed to him is also that of those who assisted him. The Court cannot dissociate the two and must as a consequence

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vary the judgment and find the hospital by its servants at fault.

The Court of Appeal refused the appeals of both the infant plaintiff and the defendant Dr. Armstrong to vary the amounts of damages allowed by the learned trial judge.

Certainly, the parties agreed and could not do less but agree that it was the duty of Mrs. Waddleton as circulating nurse in the operating room to assist the doctor in the performance of his tasks and that duty to assist applied as much to the anaesthetist in his preparations for the actual operation as to the surgeon when the operation commenced. Mrs. Waddleton was a full time employee of the hospital and was employed for that specific purpose.

In this Court, however, it was argued that the conduct of Mrs. Waddleton and her fellow nurse did not constitute negligence and secondly that even if such conduct had constituted negligence then upon their assuming of their duties in the operating room they temporarily ceased to be servants of the hospital and became servants of the doctor and he alone was responsible for their actions.

The first of these grounds is a pure question of fact. The learned trial judge noted that Dr. Armstrong had made no complaint of negligence on the part of the nurses and that he was in charge of the whole anaesthetic procedure so that had there been any failure of care on the part of the nurses the learned trial judge would have expected Dr. Armstrong to so declare and ended his consideration of this issue with the words:

I do not find any negligence on the part of the nurses.

McGillivray J.A., giving the reasons for the Court of Appeal, pointed out that this child was only four years of age and weighed about thirty-seven pounds and attempting to restrain his actions caused by his natural fright were three

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adults, all purportedly skilled in the task of doing so. One nurse, Mrs. Tomimico, held the infant plaintiff’s left shoulder so that, at any rate, he could not throw his whole body around, and Mrs. Waddleton held his right arm with her right hand restraining his right wrist and with her left hand restraining his right arm above the elbow. There was an inconsequential error in McGillivray J.A.’s recital that Mrs. Waddleton was holding his right hand, arm and elbow. Since Mrs. Waddleton only had two hands, Dr. Armstrong with his left hand held the infant plaintiff’s right elbow. McGillivray J.A. drew the inference that under these circumstances there must have been some negligence on the nurse’s part since the boy moved his arm and held that the fact that the trial judge found failure on the part of the doctor to secure immobility must result in that failure being attributed to him and also to those who assisted him, and that the Court could not dissociate the two. With this finding of fact, I am in complete agreement. It is difficult to understand how three adult and trained persons attempting to restrain the frightened movement of a four-year old and thirty-seven pound child could not have held that child absolutely immobile during the short time necessary to complete the injection. Mrs. Tomimico did not give evidence at all. Mrs. Waddleton’s memory was incomplete. I cite a small part of her evidence:

Q. He continued to cry? Do you remember him particularly moving his arm, for instance, bending his elbow?

A. No, I don’t remember.

Q. Do you remember him moving his arm at all?

A. No.

Surely, upon that evidence, the learned justice in the Court of Appeal was quite justified in finding negligence on the part of nurse Waddleton and I would not disturb that finding. I note that this finding, with which I have said I agree, is not one of vicarious liability for negligence but the learned justice on appeal found both Dr. Armstrong and nurse Waddleton to be negligent.

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I now turn to the question as to whether nurse Waddleton having been found negligent, the liability therefor will attach to the appellant, the Sisters of St. Joseph of the Diocese of Sault Ste. Marie, carrying on business under the name and style of St. Joseph’s Hospital.

As Aylesworth J.A. said in Aynsley et al. v. Toronto General Hospital et al.[2], (to which more specific reference will be made hereafter):

One should begin with the famous Hillyer case—in many respects the very font and origin of the jurisprudence on this subject: Hillyer v. Governors of St. Bartholomew’s Hospital, [1909] 2 K.B. 820.

In that particular case, the plaintiff took action against the Governors of St. Bartholomew’s Hospital alone. The mishap occurred in the operating room where the surgical team was composed of three surgeons, an administrator of anaesthesia and three certified nurses. Farwell L.J., referring to the nurses particularly, said at p.826:

The three nurses and the two carriers stand on a somewhat different footing, and I will assume that they are the servants of the defendants. But although they are such servants for general purposes, they are not so for the purposes of operations and examinations by the medical officers. If and so long as they are bound to obey the orders of the defendants, it may well be that they are their servants, but as soon as the door of the theatre or operating room has closed on them for the purposes of an operation (in which term I include examination by the surgeon) they cease to be under the orders of the defendants, and are at the disposal and under the sole orders of the operating surgeon until the whole operation has been completely finished; the surgeon is for the time being supreme, and the defendants cannot interfere with or gainsay his orders. This is well understood, and is indeed essential to the success of operations; no surgeon would undertake the responsibility of operations if his orders and directions were subject to the control of or interference by the governing body.

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The nurses and carriers, therefore, assisting at an operation cease for the time being to be the servants of the defendants, inasmuch as they take their orders during that period from the operating surgeon alone, and not from the hospital authorities.

As Aylesworth J.A. remarked after citing the Hiliyer case and many subsequent cases in the English Court of Appeal:

I do not consider it helpful in the case at bar to attempt to analyse the Hiliyer decision in detail, particularly in view of what was said about it by the Supreme Court of Canada in the Sisters of St. Joseph of Diocese of London in Ontario v. Fleming, [1938] S.C.R. 172.

That decision in this Court, I regard as the proper basis for one’s consideration of this question of liability. There, the respondent had been admitted to the hospital as a patient under a contract with the appellants “for board, nursing and attendance”. The respondent’s own personal physician gave instructions that the respondent should have a diathermic treatment and a fulltime nurse, the servant of the hospital, administered that treatment negligently so that the respondent was severely burned. The appellants submitted that the treatment was administered without negligence but in any case was administered in accordance with and on the instructions of the respondent’s own personal physician and that the nurse who administered the treatment was acting as agent of that personal physician and not as a servant of the appellants. In short, the submission was that which had been successful in Hiliyer v. Governors of St. Bartholomew’s Hospital, supra.

In The Sisters of St. Joseph of the Diocese of London v. Fleming, supra, Davis J. gave the judgment for the Court and said at pp. 190-1:

After the most anxious consideration we have concluded that, however useful the rule stated by Lord Justice Kennedy may be in some circumstances as an element to be considered, it is a safer practice, in

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order to determine the character of a nurse’s employment at the time of a negligent act, to focus attention upon the question whether or not in point of fact the nurse during the period of time in which she was engaged on the particular work in which the negligent act occurred was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself. It is better, we think, to approach the solution of the problem in each case by applying primarily the test of the relation of master and servant or of principal and agent to the particular work in which the nurse was engaged at the moment when the act of negligence occurred.

I point out that that is the test specifically adopted by Aylesworth J.A. in Aynsley v. Toronto General Hospital, supra, at pp. 838-9, and the course taken by the learned justice on appeal was approved on the appeal to this Court by Hall J. in giving the unanimous judgment of the Court: Trustees of the Toronto General Hospital and Dr. R.L. Matthews and Elizabeth Aynsley[3], at pp. 438-9.

In Vancouver General Hospital v. Fraser[4], the Court was concerned with the negligence of a fulltime intern in a hospital who had presumed to make a diagnosis for X-ray without being qualified to do so and who had then informed the patient’s family physician of such diagnosis in a telephone conversation with the result that the physician authorized the discharge of the patient from the emergency department. The patient’s condition worsened, he had to be re‑admitted and died some days afterwards. Rand J. said at p. 45:

Mr. Bull argues, first, that there was no negligence on the part of the interne, Dr. Heffelfinger, and secondly, that the discharge of the patient was by his own doctor and not by the hospital.

And at p. 47, Rand J. said:

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Dr. Heffelfinger went beyond the mere communication of Dr. Blair’s advice or instructions to the patient. On the wife’s evidence, he actively reasured [sic] both the deceased and her, notwithstanding her hesitant acceptance of it, that there was nothing seriously wrong and no ground for anxiety. He was, of course, acting in good faith, but he failed, not, it may be conceded, in reading the plate incorrectly, but in not being more acutely sensitive to the grave symptoms that stood out before him and in not exercising caution against his inexperience, in not seeking verification. That misreading, concurred in apparently by Dr. Davies, and, on the communication, by Dr. Blair, created in him a settled opinion of the worst possible error. In these reassurances he was not exhibiting the skill and care which the hospital undertook would be exercised in the ward; and that insufficiency, regardless of whether or not he was acting on behalf of Dr. Blair, was the agency that gave rise to the fatal event that followed. On those assurances, the husband and the wife placed reliance and acted. The jury had before it evidence from which it could conclude that his duty as the representative of the hospital toward the patient was not, in the circumstances, performed by allowing the injured man to leave in the condition in which he was: and for that the hospital must answer.

In Sisters of St. Joseph of the Diocese of London v. Fleming, supra, the hospital was held liable for the negligent act of a nurse on the ward in carrying out negligently a treatment prescribed by the family physician.

In Vancouver General Hospital v. Fraser, supra, the hospital was held liable for the negligence of a fulltime servant, an intern, despite the fact that the actual order for the release of the patient from the hospital came from his family physician.

In Trustees of the Toronto General Hospital v. Dr. R.L. Matthews and Elizabeth Aynsley, as it was styled in this Court, the hospital was held liable for the negligence of an intern, a fulltime employee of the hospital, when that intern was assisting an anaesthetist in administering an anaesthetic to the patient. The anaesthetist, the

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respondent Dr. Matthews, was found, by the learned trial judge, to be a privately employed anaesthetist. The learned trial judge found that both the assisting anaesthetist Dr. Porteous and the chief anaesthetist Dr. Matthews had been negligent in their administration of the anaesthetic. As I have said, the learned trial judge found the hospital liable for the negligence of its servant Dr. Porteous and that finding was affirmed in the Court of Appeal for Ontario and in this Court.

I need not review the many other cases both here and in England where this question has been canvassed but feel free to state my conclusion that the test enunciated by Davis J. in Sisters of St. Joseph of the Diocese of London v. Fleming, supra, has now been accepted in Canada as the proper test of the hospital’s liability and that is:

whether or not in point of fact the nurse during the period of time in which she was engaged on the particular work in which the negligent act occurred was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself.

I am of the opinion that that is the test whether the alleged negligent act occurred in the ward, in the emergency room, or in the operating room. Applying that test to the present circumstances, Mrs. Waddleton was a fulltime employee of the appellant as a circulating nurse in the hospital. In her answers, she made this specific admission:

Q. Was one of the reasons that you held his arm so he wouldn’t move his arm?

A. That’s right.

Q. And is that one of your duties in the operating room?

A. Yes, you help restrain.

Nurse Waddleton was actually carrying out that very duty when, as the learned justice on

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appeal found and I agree, her failure to control the patient resulted in an act of negligence.

I am therefore of the opinion that not only Dr. Armstrong but also the appellant Sisters of St. Joseph of the Diocese of Sault Ste. Marie are liable for that negligence. As I have said, the Court of Appeal found both Dr. Armstrong and nurse Waddleton negligent and apportioned that negligence 70 per cent against the defendant Dr. Armstrong and 30 per cent against the appellant hospital. I would not interfere with that apportionment.

In the result, I am of the opinion that the appeal should be dismissed and the judgment of the Court of Appeal affirmed. The respondents are entitled to their costs in this court against the appellant.

Appeal allowed with costs.

Solicitors for the appellants: Bell, Temple, Toronto.

Solicitor for the plaintiffs, respondents: Elmer W. Sopha, Sudbury.

Solicitors for the defendant, respondent: Gowling & Henderson, Ottawa.