2018 QCCQ 9464, 2018 QCCQ 9464

Matthiessen c. Waybright 2018 QCCQ 9464 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-700619-184 DATE: December 21, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Ingrid MATTHIESSEN Plaintiff v.

Warren WAYBRIGHT Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ingrid Matthiessen claims from Dr. Warren Waybright, veterinarian, the amount of $ 15,000, representing the value of her hanoverian mare Forza del Destino , who had to be euthanized the day after Dr. Waybright treated a wound on her front leg. [ 2 ] Mrs. Matthiessen reproaches Dr. Waybright not to have given the horse an antibiotic that could have prevented the infection that spread during the following night. Mrs.

Matthiessen has filed documents that prove that her horse’s value was around $ 20,000, but she accepts to reduce her claim to $15,000 in order to be able to present her Demand in the Small Claims Court. THE FACTS: [ 3 ] In July 2017, Ingrid Matthiessen was the owner of about a dozen horses. She was then on vacation in Nova Scotia. [ 4 ] During the afternoon of July 7, Forza came back from the field with a wound to her neck and front leg, on the fetlock area. [ 5 ] Mrs. Andrea Knight, employee in charge of the horses, called Hôpital Vétérinaire Ormstown and Dr. Waybright arrived in the afternoon.

He took care of the mare’s neck wound then took radiographs of the horse’s leg, as he was concerned that the injury could have touched the joint or the bone. During this procedure, Dr. Waybright could insert his finger in the wound to the second knuckle. [ 6 ] He gave the horse a tetanus shot, then wrapped the leg. The mare was then walked through the paddock to sleep in the barn. [ 7 ] According to Mrs. Knight, she requested several time that an antibiotic be given to the horse. Dr. Waybright said he preferred to examine the radiographs first. [ 8 ] After he saw the radiographs, Dr. Waybright called Mrs.

Matthiessen. As he saw no bone chip of fracture and as the X-Ray did not show any sign of infection, he concluded that there was no communication with the synovial conducts and considered that the cleaning of the wound that he had done and the bandage were sufficient, and that no antibiotic was necessary. [ 9 ] When Dr. Waybright returned the next morning to see how Forza was doing, he found her alert but in pain. Her heart rate was high due to the pain.

The fetlock was swollen and warm, he saw some yellow joint fluid. [ 10 ] He decided to call the St-Hyacinthe’s Veterinary Hospital (C.H.U.V.) where it was confirmed to him that the horse was suffering from septic infection. [ 11 ] The necessary procedures could not be done at the barn, so Forza had to be transferred to St-Hyacinthe’s Hospital. He then called Mrs. Matthiessen who took the decision to have Forza be euthanized at the farm, as she did not believe that she could endure the

trip to St-Hyacinthe. [ 12 ] In his contestation, Dr.

Waybright states that he committed no fault, and that according to the education sessions he received recently, it was not appropriate to give antibiotics every time there is a wound, to avoid the development of bacteria that could resist the antibiotics. [ 13 ] He also argues that if antibiotics were given on July 7, nothing shows that the infection would not have progressed anyway. [ 14 ] He pleads also that the death of Forza resulted from the decision to euthanize her and that he acted as any prudent veterinarian would have done under the same circumstances. [ 15 ] He insists on the fact that he went back to see the horse within 24 hours of his first intervention.

ANALYSIS AND DECISION: [ 16 ] Dr. Waybright filed as exhibit D-4 an expertise report from Dr. Gilles Nault, veterinarian, who answered four questions regarding his professional evaluation of the horse’s condition. [ 17 ] Mrs. Matthiessen did not file any expert report, but announced at the beginning of the hearing that she had an expert witness with her, Dr. Kareen Heineking-Schüette. [ 18 ] Mr. Waybright objected to that testimony, arguing that no report was filed. [ 19 ] The Court dismissed the objection, as

Section 560 of the Code of civil procedure says that: the Court may accept an expert’s oral testimony in lieu of an expert report; it may also accept the filing of any document, even though the prescribed filing time has expired. * [ 20 ] In his written report, Dr. Nault answers the four following questions, summarized as follows: 1- Was Dr. Waybright’s decision to wait before starting an antibiotic treatment constitute a fault? This decision was not a fault because in the view of fair use of antibiotic, steps were taken to verify the wound and a re-evaluation was scheduled for the next day. 2- Could Dr.

Waybright foresee the infection that would lead to the diagnosis of septic arthritis on his first visit? We cannot see if infection is starting in the joint when there is a wound. This is why a radiograph with dye was used and a re-evaluation scheduled. Had Dr. Waybright not decided to do a follow-up, it would have been a bad handling of a delicate case. As of the first day, the owner was aware that if the joint was touched, a transfer to the C.H.U.V. would be needed. 3- Considering Forza’s state of health, was an antibiotic treatment required as of the first visit?

No, because the main tool is the washing of the joint ( lavage articulaire ) and to give some antibiotics directly in the affected area. This is a specialized technique given at the C.H.U.V., as antibiotics given by intravenous injection do not spread correctly in the joint. 4- Would a treatment by joint and tendon washing have been an efficient treatment so save Forza’s life? This washing and specialized care do all the difference and it is important to note that septic arthritis cases at the C.H.U.V. often present weak chances of healing.

In this case, the horse did not have a chance to be treated and the next day, 12 hours later, it was not too late to do it or at least to try for a few days and see what would happen. The fault cannot be not to have given antibiotics as of the first visit, as it was not the main concern. Anyway, antibiotics take a certain time to react and would not have reached the minimal concentration that could have make a difference. [ 21 ] Dr. Nault adds that this kind of infection calls for particular care with a very reserved prognostic and result in a quite high cost. He writes in his report that Mrs.

Matthiessen wanted to save her horse without specialized care and the attached costs. The steps taken by the veterinarian were logical but the horse did not have the chance to receive specialized treatments at the C.H.U.V. * [ 22 ] Dr. Heineking-Schüette disagrees with that report. She has her own veterinary practice since 2003 and is a trainor for Hanoverian horses. She said that the earlier you start an antibiotic treatment, better are the chances that the horse may survive. She estimates that the survival rate is about 65% with the early starting of antibiotic.

She would have given Forza a broad spectrum penicillin that, if not needed, would not have caused any harm to the horse. [ 23 ] She notes also that on the second day, Dr. Waybright made a very rudimental exam of the horse and took no measures to stabilize her so she could be transported to the C.H.U.V. [ 24 ] She thinks that as a veterinarian you have to assume that there will be a bacterial infection, especially if you can enter the wound. Horses are sensible to septicemia. It has to be noted that after her leg was wrapped, Forza had to walk to the barn on muddy soil. [ 25 ] Dr.

Heineking-Schüette concludes that she believes Dr. Waybright has done his best, but that it was not enough, as he hurt some

serious and basic rules. [ 26 ] Mrs. Matthiessen thinks that Forza should have been brought to the C.H.U.V. on the evening of July 7, which possibility was not offered to her when she spoke to Dr. Waybright. Mrs. Knight confirms that at no point Dr. Waybright suggested that Forza should go to the C.H.U.V. and never mentioned that this injury could potentially be life threatening. [ 27 ] According to Mrs. Knight, Forza was in a great deal of pain, she was sweating, had shortness of breath and a high heart rate.

When she took her out of her stall, she was staggering and tense and she was having trouble with her balance and was struggling to stay standing on three legs. According to her, it was clear that it would be impossible for Forza to step-up into a trailer as she was already struggling to stay on her legs. [ 28 ] Dr. Waybright said, with hindsight, that the decision taken may not have been the best, but he wished to explain that he tried to have due diligence in the procedures. [ 29 ] He does not agree with Mrs.

Knight that Forza could not get into the trailer, as she could walk and could have been kept still in the trailer. He would have helped her get in the trailer would Mrs.

Matthiessen have decided to take her to the C.H.U.V. [ 30 ] He says that he respects his client’s choice and tries to be neutral in exposing the solutions and not to put pressure on the clients. [ 31 ] The barn did not present the right conditions for him to do a joint lavage, which is a specialized procedure that should have been done at the C.H.U.V. [ 32 ] He recognizes that the situation is very sad but he could not guarantee the overcome and did what he had to do. He also adds that if the referral to the C.H.U.V. was done, we don’t know what would have happened to Forza. * [ 33 ] After reading Dr.

Nault’s report and hearing Dr. Heineking-Schüette, the Court prefers the latter’s testimony, which seemed very reliable and credible. It has to be noted that Dr. Nault assumes that Mrs. Matthiessen was not ready to pay for the transportation and care of Forza in the C.H.U.V. He assumes this without having spoken with Mrs. Matthiessen and the proof presented in Court strongly denies that Mrs. Matthiessen was not ready to spend the right amount of money to try to save her horse. This comment diminishes Dr. Nault’s credibility. [ 34 ] It should also be noted that Dr.

Nault, in his answer to the fourth question, emphasises that it’s the cleaning of the wound and specialized care that makes a big difference. If such was the case, this procedure should have been recommended the day before. Dr. Nault believes, without having seen the horse, that it was not too late to send her to St-Hyacinthe, which was contradicted by Mrs. Knight’s testimony, that the Court believes also to be very reliable, considering her experience with horses and especially with Forza that she knew very well. [ 35 ] Having decided that Dr.

Waybright committed a fault, it is now necessary to decide if there is a causal link between this fault and the damage suffered by Mrs. Matthiessen by the death of Forza. As said earlier, the Court believes that Mrs. Matthiessen did not take the decision to euthanize Forza lightly, but that her decision was based upon the fact that she believed, based upon Mrs. Knight’s observations, that the horse could not endure the trip to St-Hyacinthe due to her condition. [ 36 ] The Court of Appeal has rendered an interesting decision in the matter of the causal link in the judgment Quantz [1] . In that decision, Mr.

Quantz was suing A.D.T. because the alarm system of his house did not function when some thieves came into his house to rob him of a safety box in which there was jewelry and money. Mr. Quantz was then on vacation in Florida.

For its defense, A.D.T. pleaded that it was not sure that, had the alarm system functioned correctly, the police could arrive on time to stop the thieves, and that the loss of their goods was not necessarily caused directly by the failure of the alarm system. [ 37 ] The Court, relying on the fact that the thieves stayed in the house for a few hours, concluded that had the police arrived within half an hour, they would have caught the thieves or they would have quit the house, hearing the police arrive.

The Court concludes that a causal link between the contractual fault of A.D.T. and the loss of the jewels was established by the balance of probabilities ( preponderance de prevue) , according to

Section 2804 of the Quebec Civil Code . [ 38 ]

Section 2804 of the Quebec Civil Code states that evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 39 ] Dr. Heineking-Schüette testified, filing some authorities, that 65% of horses who are treated rapidly do recover from their wound. [ 40 ] Consequently, the Court considers that had Dr.

Waybright given antibiotics to Forza right when he saw her, or had he proposed that she be transferred to St-Hyacinthe to get more extensive treatments, chances are she would have survived, on the basis of the balance of probabilities. [ 41 ] As Mrs. Matthiessen has proved that the value of that horse is over $ 20,000, her claim for $ 15,000 must be granted.

FOR ALL THESE MOTIVES, THE COURT: GRANTS Plaintiff's claim; ORDERS Defendant, Warren WAYBRIGHT, to pay to Plaintiff, Ingrid MATTHIESSEN, the amount of $ 15,000 plus the legal interest calculated from March 1, 2018, date of service, and the additional indemnity payable in virtue of

article 1619 C.c.Q. with the judicial costs of $ 202. __________________________________ CÉLINE GERVAIS, J.Q.C.