2023 MBKB 173, 2023 MBKB 173

Date: 20231201 Docket: CI 20-01-27386 (Winnipeg Centre) Indexed as: Tripp v. Ross Cited as: 2023 MBKB 173 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: BRECK TRIPP, as representative for the ESTATE OF LINDSEY SHAuN TRIPP, plaintiff, - and – JAMES FARRELL ROSS, defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Richard M. Beamish Jesse Rock for the plaintiff G. Todd Campbell Cheryl A. Frost for the defendant JUDGMENT DELIVERED: December 1, 2023 GREENBERG J. INTRODUCTION [ 1 ] This is a medical malpractice claim. The plaintiff alleges that Dr. Ross’s negligence delayed the diagnosis of colorectal cancer in Mr.

Tripp leading to his death. Mr. Tripp passed away before the trial commenced. The action has been continued by his estate and the claim has been amended to include a claim under The Fatal Accidents Act , C.C.S.M. c. F50 . [ 2 ] Dr. Ross admits he was negligent in treating Mr. Tripp, resulting in delayed diagnosis of cancer, but he says that earlier diagnosis of the disease would not have changed the ultimate outcome. Therefore, he says that his negligence was not the cause of most of the damages claimed. [ 3 ] For the reasons that follow, I find that the late diagnosis of the disease did cause Mr.

Tripp additional pain and suffering for which he should be compensated, but that it did not cause his untimely death. background

[ 4 ] The underlying facts in this case are not contentious and there is remarkable consistency in the evidence of the two doctors who provided expert evidence on the issue of causation. [ 5 ] On December 18, 2017, Mr. Tripp went to his doctor at the Killarney Clinic complaining about rectal bleeding and abdominal cramps. He was referred to Dr. Ross who saw him on December 29, 2017. Dr. Ross suggested a colonoscopy, which was performed on January 12, 2018. Dr. Ross removed five polyps, which were biopsied.

The pathologist found that one of the polyps had low-grade dysplasia, creating a significant risk for the development of adenocarcinoma. [ 6 ] Dr. Ross saw Mr. Tripp again on January 24, 2018, and told him the results of the colonoscopy and that some of the polyps that were removed were very aggressive. He told Mr. Tripp to return in one year. At the time of the January visit, Mr. Tripp’s symptoms had improved. [ 7 ] Between March and August 2018, Mr. Tripp had episodic abdominal pain and rectal bleeding. He went to his family physician on August 1, 2018. Blood work showed a low hemoglobin and iron deficiency.

As a result, he was referred back to Dr. Ross who saw him on August 10 th . A barium enema was ordered, which showed a tumour on the descending colon. A CT scan confirmed the tumour and other abnormalities, including enlarged regional lymph nodes. [ 8 ] Dr. Ross admits that he was negligent in the manner in which he performed the colonoscopy. It appears that, once he found the five polyps, he assumed that he had found the source of Mr. Tripp’s bleeding and did not continue the colonoscopy. It is not disputed that, had he continued the colonoscopy, he would have seen the tumour. [ 9 ] Mr.

Tripp underwent surgery on October 9, 2018, resulting in the removal of the tumour, along with 40% of his pancreas, his spleen and all but a foot of his lower bowel. Because the tumour had stuck to the pancreas and the spleen, it could not be completely removed. Mr. Tripp remained in hospital until October 21 st . On October 23 rd , he returned to hospital with sharp abdominal pain as a result of an abscess and spent another five days in hospital. [ 10 ] In November 2018, Mr. Tripp commenced one of several rounds of chemotherapy treatments.

On November 15, 2018, he was admitted to hospital with fever and abdominal pain and spent 11 days there as a result of a perforation in his bowel. Scans performed in December 2018 showed possible liver metastases. [ 11 ] On January 14, 2019, Mr. Tripp’s pancreas stopped working resulting in diabetes, which required insulin injections. The steroids he took before each chemotherapy treatment made the insulin difficult to control. [ 12 ] On May 8, 2019, Mr. Tripp was admitted to hospital because of a C difficile infection, a bacterium generally found in hospital settings. [ 13 ] When Mr. Tripp first saw Dr.

Ross, he was a 53-year-old electrician who had been married for 33 years and had three adult sons and two granddaughters. He ran his own business for 22 years but shut it down in 2017 and went to work for Precision Electric doing electrical work in hog barns. He was physically active in his spare time, golfing, riding motorcycles and ice fishing. He enjoyed renovating homes. He had a workshop in his basement where he liked to do woodwork and crafts. Before being diagnosed with cancer, he always had a project on the go. Mr. Tripp stopped working in December 2019 as a result of his illness.

He passed away on February 20, 2022. Tragically, in July 2021, his wife Hayley was diagnosed with a brain tumour. She died in January 2023. [ 14 ] Mr. Tripp’s son, Justin, testified that his father had a long, painful recovery from the surgery in October 2018 and the cancer treatments were very harsh. He also said that his father had a lot of issues with diabetes. He said that his father was very upset that, in spite of doing everything he could to address the symptoms, his diagnosis was missed. He experienced symptoms of depression and was anxious about his poor prognosis. issues [ 15 ] As I said, Dr.

Ross admits he was negligent in treating Mr. Tripp, resulting in the delayed diagnosis of cancer. And he admits that the plaintiff should be compensated for the increased pain and suffering caused by the delayed diagnosis. There are two remaining issues: 1) Did the delayed diagnosis cause Mr. Tripp’s death? Dr. Ross says that Mr. Tripp’s cancer would have been terminal even if it was detected in January 2018 when the colonoscopy was performed; and 2) What damages should be awarded? the law [ 16 ] The onus is on the plaintiff to show on a balance of probabilities that the defendant caused him injury.

The general test for causation is the "but for" test. The plaintiff must show that the injury would not have occurred but for the negligence of the defendant:

Athey v. Leonati, (SCC), [1996] 3 SCR 458. In some cases, a plaintiff may be able to establish causation on the basisthat the defendant’s acts materially contributed to the risk of injury. Those cases are exceptional and usually involve situations wherethere are a number of negligent actors and it is impossible to determine who caused the injury: Clements (Litigation Guardian of) v.Clements, 2012 SCC 32. The plaintiff here does not argue that the material contribution test is applicable.

Rather, they argue that thenature of the evidence is such that I should apply an inference of causation because it is impossible for the plaintiff to produce evidenceto prove causation. They rely on Benhaim v. St.-Germain, 2016 SCC 48. [17] Benhaim was also a medical malpractice case where the plaintiff died of cancer. There had been a delay in diagnosis, which ledthe trial judge to find that the doctors were negligent. However, the judge also found that, even if the doctors had diagnosed the diseaseearlier, it would have been incurable.

While Benhaim is a decision under the Quebec Civil Code, the dicta that is relevant here relates tothe Supreme Court’s comments regarding its earlier decision in Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, a casefrom a common law jurisdiction. The Court held that the Quebec Court of Appeal in Benhaim had misinterpreted Snell in finding thatthere is a requirement to draw an adverse inference of causation where the defendant’s negligence undermines the plaintiff’s ability toprove causation.

Wagner J. (as he then was) explained: [54] In sum, the Court held in Snell that "the plaintiff in medical malpractice cases - as in any other case - assumes the burden of provingcausation on a balance of the probabilities": Ediger, at para. 36. Causation need not be proven with scientific or medical certainty,however. Instead, courts should take a "robust and pragmatic" approach to the facts, and may draw inferences of causation on the basisof "common sense": Snell, at pp. 330-31; Clements, at paras. 10 and 38.

The trier of fact may draw an inference of causation evenwithout "positive or scientific proof", if the defendant does not lead sufficient evidence to the contrary. If the defendant does adduceevidence to the contrary, then, in weighing that evidence, the trier of fact may take into account the relative ability of each party toproduce evidence: Ediger, at para. 36. [55] I conclude that Snell did not create the rule of law attributed to it by the majority of the Court of Appeal. This reading is consistentwith the position taken by authors Allen M.

Linden and Bruce Feldthusen in Canadian Tort Law (10th ed. 2015), at p. 129: "There isnothing unusual about [the holding in Snell]; an inference can be drawn in causation fact-finding just the same as in other fact-findingsituations. This is not, therefore, a retreat from 'but for' analysis, but an example of it, using ordinary logic and reasoning as in othercontexts." [18] The Court in Benhaim also considered the extent to which statistics can be relied upon to prove causation. The majority held thatstatistical evidence must be approached with some caution.

Statistical generalizations are not in themselves determinative but must beconsidered in the context of the evidence in a particular case. analysis Causation [19] Each party called one witness on the issue of causation. The plaintiff called Dr. Harvey Schipper. The defendant called Dr.Malcolm Moore. Both witnesses are oncologists with many years of experience in cancer treatment. Both were qualified to give expertevidence on the treatment and prognosis of cancer and offered opinions on the effect of a delay in diagnosis on the treatment andprogression of the disease.

The defendant argued that I should give more weight to the evidence of Dr. Moore because, while bothwitnesses are oncologists, Dr. Moore specializes in colorectal cancers while Dr. Schipper’s area of expertise is in breast cancer. Thedoctors’ curriculum vitae show that both have had remarkable careers and I found both to be impressive witnesses. Both doctorspresented their evidence in a forthright way with no appearance of bias in favour of the party that retained them. Fortunately, I do nothave to choose between the evidence of these two witnesses because, for the most part, their evidence was consistent.

To the extent thatthere were any differences in their evidence, it appeared to be due more to the way the questions were put to them than to any realdifference of opinion. [20] As I said, Dr. Ross admits that he was negligent in his treatment of Mr. Tripp. It is not disputed that colon cancer was present inJanuary 2018 and, if the colonoscopy had been properly performed, it would have been detected at that time. Because the cancer was notdetected until October 2018, the tumour had a chance to grow, resulting in more complicated surgery. However, Dr. Ross says the eight-month delay in diagnosis did not affect Mr.

Tripp’s chance of survival. [21] Dr. Moore and Dr. Schipper both explained that the prognosis for colon cancer depends on the “staging” of the tumour. Thestaging is determined by considering three factors: 1) the “T” factor, which is based on the size of the tumour and whether it has spreadlocally. The T factor ranges from T1, where the tumour is just on the surface of the bowel, to T4b, where it has invaded another organ;2) the “N” factor, which represents the number of lymph nodes that are involved.

N means no lymph nodes are involved, N1 means fiveor less are involved, and N2 means six or more are involved; and 3) the “M” factor, which indicates whether the tumour hasmetastasized, that is to say, spread to another organ at a distance from the original site. M0 indicates that no metastases has beenidentified. This does not mean that there is no metastases, only that none is evident. [22] Mr. Tripp’s tumour was described as T4bN2M0 (the tumour had spread locally to other organs; six of 14 tested lymph nodeswere involved; no metastases was evident).

Those three factors are considered together to determine whether the cancer is stage I, II, IIIor IV. The higher the stage, the poorer the prognosis. Dr. Moore testified that the stage of Mr. Tripp’s cancer in October 2018, IIIB,indicates that it was locally advanced and that the likelihood that it had spread to other parts of the body is quite high. Because thetumour was not removed at the time of the colonoscopy in January 2018, there is no evidence as to the stage of the cancer at that time.

The opinions of the two doctors on Mr. Tripp’s prognosis at that time is based on the stage of the tumour in October 2018, the discovery of liver metastases in December 2018 and statistics which indicate the rate at which the disease would have developed. [ 23 ] Both doctors testified that colon cancer is slow growing and that the tumour that was found in October 2018 had been there for a long time. The tumour would have been present in January 2018. Both doctors testified that colon cancer may be curable where it has spread locally but that, once the disease metastasizes, it becomes fatal. Dr.

Moore testified that, because all blood flows through the liver, that is where colon cancer usually spreads. In Mr. Tripp’s case, the fact that the cancer had spread to his liver is what made the disease incurable. In argument, counsel for the plaintiff conceded that the key issue in determining causation in this case is whether the cancer had already spread to the liver in January 2018. If so, even if the colon tumour had been detected at that time, it would not likely have changed the outcome. [ 24 ] Dr. Schipper and Dr.

Moore both testified that a tumour cannot be detected in the liver until it has doubled many times from its original size. A single cancer cell is 1/100 mm [10 microns] in diameter and cannot be seen. A cell would have to double in size 20 to 30 times before it can be seen on a CT or MRI scan. Dr. Moore said that the rate of “doubling” for a cancer cell is between two and 16 weeks. In cross-examination, Dr. Schipper agreed that the rate of doubling can range from 15 days to six months. When Mr. Tripp’s tumour was found on a scan in December 2018, it was over 1 cm in size. Dr.

Moore testified that it would have doubled 30 times to get to that size. Even at a fast-doubling rate of two to four weeks, it would take 15 to 30 months for the liver metastases to reach that size. Dr. Moore said that studies show that, in cases of metastatic cancer where patients had no evidence of metastatic disease at the time of surgery, on average, the metastases becomes apparent about 18 months after surgery. [ 25 ] While Dr.

Moore said that one can never be 100% certain as to when metastatic spread occurs, in his opinion there was a “reasonable likelihood” that the liver metastases detected in December 2018 was there before January 2018. He said that for the majority of people, once cancer has spread to the liver, it is incurable. It was his opinion that, although if diagnosed in January 2018, Mr. Tripp would have had a chance to be cured, that chance would be in the region of 30%. [ 26 ] As I said, we do not know for certain what stage the cancer was at in January 2018 or whether it had metastasized.

Both doctors agreed that one cannot predict the progression of the disease or prognosis with certainty. Their assessment of how the disease progressed is based largely on statistics gathered through studies. Colon cancer is a common and well-studied disease. Dr. Moore said that they know more about the development of colon cancer than most other cancers. [ 27 ] At the time of surgery in October 2018, Mr. Tripp’s colon cancer had invaded the pancreas and several lymph nodes. However, there was no evidence of metastatic spread. At that time, the tumour was classified as “T4b, N2, M0”. Dr. Schipper opined that Mr.

Tripp’s chance of five-year survival based on that classification was 18.3%. He in fact died a little over three years later. [ 28 ] Dr. Schipper also offered an opinion as to Mr. Tripp’s chance of survival depending on different scenarios as to the stage of the tumour in January 2018. He said that if the tumour had not invaded the pancreas at that time, but the same number of lymph nodes were involved, his chance of surviving five years would have been 32.5%. If the tumour had invaded the pancreas with only two to three nodes involved, his chance of survival would have been 25.4%.

If the tumour had not involved the pancreas with only 2 to 3 nodes involved, he would have had a 42.1% chance of five-year survival. (Dr. Schipper explained that studies have historically used five-year survival as a measurement for whether the disease is cured, in part because it was difficult to follow patients for longer than that.) Dr. Schipper acknowledged that there are individual variables that may affect prognosis such as co-morbidities, that is to say, other health issues like heart disease that may affect the ability to fight the cancer. [ 29 ] Dr.

Schipper’s estimates on the chances of survival did not factor in the possibility of liver metastases in January 2018. That is to say, even without liver metastases, Dr. Schipper did not offer an opinion on any scenario where Mr. Tripp would have had a better than 50% chance of survival. However, he opined that it was “plausible” that the delay in diagnosing the colon cancer compromised Mr. Tripp’s prognosis. He was not asked in direct or cross-examination what he meant by “plausible”.

In cross-examination, he agreed that the liver metastases would have been there for months, if not years, before it was discovered in December 2018. [ 30 ] Dr. Moore agreed with Dr. Schipper’s analysis. He concluded his report by saying: In all cases of colorectal cancer, it is not clear at what point in the course of the illness metastatic spread will occur. As previously discussed, the probability of metastatic spread does increase as the stage of the cancer becomes more advanced. I have reviewed the probability estimates provided by Dr. Schipper in his letter and I would agree with his estimates.

These represent risks of spread in a population of colorectal cancer patients at different stages. However, in the case of Mr. Tripp, his cancer had spread at the time it was diagnosed and the metastatic cancer was detected in his liver only 2 months after his surgery. This cancer had likely been in the liver for some time.

While one can never be certain as to when the spread occurred; the fact that there is a known to be lag time of months to years between when a cancer initially spreads to the liver, and when it can be detectable by MRI or CT scan, suggests that there is a reasonable likelihood that the spread occurred before January 2018. If that had been the case, then Mr. Tripp’s cancer would still have been incurable, even if detected in January 2018, and his ultimate prognosis would be the same. [ 31 ] The plaintiff argues that Dr. Moore’s opinion is based only on statistics and not on Mr. Tripp’s personal circumstances. Dr.

Moore said that the statistics are based on studies of large populations and include the prognosis for different types of colon cancer. In cross-examination, he was asked about how the statistics relate to Mr. Tripp’s cancer: Q: And so the studies that you relied on for your statistics that you go back to consider this case, were studies based on a wide demographic. They weren’t specific to – to Shaun Tripp’s specific circumstances: his age, his family history or otherwise. Would you agree with that? A: I would agree with that we do have some information from Mr.

Tripp that – that comes into formulating the opinion. Because I did allude to the fact that not all cancers spread. And the –we – we know in this case, that his cancer had the propensity to spread, because it had grown into his pancreas. It had grown into his lymph nodes and it had gone to his liver. So –

Q: And we know that from the surgery in October? A: Right. But that – that’s a reflection of the biology of his cancer. Q: Yes. But the biology of the cancer – and what you’re referring to when you went back to the statistics is the wide based study based on wide based demographics. It’s not specific to Mr. Tripp’s particular circumstances? A: Well, I might disagree slightly with that because we do know from Mr. Tripp’s case that his cancer had the biological propensity to both grow locally into the pancreas, travel to his lymph nodes, and travel to his liver. Q: It has the propensity.

A: Well, it actually did it. It did that. Q: Yeah. A: So we know that it—it had those – see cancers have different – there’s a lot of colon cancer. Not all of them have this propensity to spread. His – his unfortunately had the propensity to spread. [ 32 ] As to the relevance of a patient’s personal circumstances, such as lifestyle factors, in determining the progression of cancer, Dr. Moore testified that the primary influence of those factors is on the development of cancer. He said that once cancer is developed, it becomes “a beast of its own making”.

There is little evidence that lifestyle affects the speed of growth or development of metastases. [ 33 ] Dr. Moore’s opinion was based not only on statistics but on what is known about the progression of the disease in Mr. Tripp’s case and on the nature of his colon cancer. Dr. Schipper’s opinion was also largely based on statistics. While Dr. Schipper opined that it was “plausible” that the delay in diagnosis compromised the ultimate prognosis, there was no explanation as to the use of that term.

It is not a term that is usually used as a synonym for “probable” or “more likely than not”, the standard of proof here. For example, Merriam-Webster (on-line) defines “plausible” as “superficially fair, reasonable, or valuable but often deceptively so”. In any event, as Dr. Schipper was not asked what he meant by “plausible”, it is not a statement which is particularly helpful to the plaintiff’s case. In the end, I find that the evidence on causation does not satisfy the plaintiff’s burden of proof. [ 34 ] While the plaintiff argues that I should not rely on Dr.

Moore’s evidence that liver cancer was likely present in January 2018, they have not led evidence that it was probably not present at that time. As I said, the evidence of Dr. Schipper is for the most

part consistent with the evidence of Dr. Moore. To the extent that it differed, it was because of what he was asked to comment on and the nature of the questions put to him. In direct examination, Dr. Schipper was asked and commented upon whether the colon tumour would have already spread locally in January 2018. He was not asked the key question – whether, in his opinion, the cancer had metastasized at that point. In cross-examination, the following questions were put to him: Q: And I would suggest to you then when a metastatic tumour is discovered in the liver it has been there for many months, if not years.

Would you agree with that? A: Yes. Q: And if this liver metastasis has been present for many months if not years, it would have been present at the time of surgery in October of 2018? Yes? A: Yes. Q: And so if it was present at the time of surgery in October of 2018, the tumour had already demonstrated a capability to be metastatic and it would have been a stage IV instead of a stage III in October, correct? A: Yes. Q: And that has certain effects prognostically, correct? A: Yes. Q: Okay.

And likewise if it takes months to years for the tumour to become visible in the liver, it may have been present at the time of the colonoscopy in January of 2018, right? A: Yes. [ 35 ] Dr. Schipper was not asked and did not offer an opinion on whether the liver cancer was likely present in January 2018. [ 36 ] The plaintiff has asked me to draw an inference on causation against the defendant but they did not explain on what basis I would do so. This is not a situation where the parties are in different positions regarding their ability to produce evidence.

As explained by Wagner J. in Benhaim : [68 ] As Professor Khoury points out, an approach that triggers an adverse inference on the basis of scarce evidence has the same effect as reversing the burden of proof, and should generally be avoided (p. 226). She suggests, however, that cases of negligently created causal uncertainty may be recognized as an exception for which a rebuttable legal inference - in the civil law context, a judicial

presumption - is warranted (pp. 227 and 236-37). With respect for the contrary view, I do not agree. Shifting the consequences of causaluncertainty in this manner risks turning defendant professionals into insurers. This is something which the Quebec regime of civilliability does not contemplate. In any event, since it would have the same effect as reversing the burden of proof - as the majority of theCourt of Appeal's approach to the evidence demonstrates - I find that Snell and particularly St-Jean do not support such a development inthe law. [37] The plaintiff relies on Dr.

Moore’s evidence that, had the tumour been detected in January 2018, Mr. Tripp would have had a30% chance of survival. They say there is no evidence that Mr. Tripp would not have been in that 30% group, that is to say, on the goodside of the statistics. But, to meet the standard of proof, the plaintiff must show that Mr. Tripp would have had a greater than 50%chance of survival and this they have not done. [38] It is not enough that the plaintiff prove a possibility that Mr. Tripp would have lived if Dr. Ross had not been negligent. Asexplained by Sharpe J.A. in Cottrelle v. Gerard, (ON CA), [2003] O.J.

No. 4194 (C.A.) (QL): 25 I agree with the appellant's submission that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on abalance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance ofprobabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment,then the plaintiff's claim must fail.

It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance ofavoiding the unfavourable outcome unless that chance surpasses the threshold of "more likely than not." [39] The plaintiff argues that Dr. Ross should not be rewarded for his negligence. It is true that he fell short of meeting the standardof care. But, as explained by McLachlin C.J.C. in Clements, supra: [16] Elimination of proof of causation as an element of negligence is a "radical step that goes against the fundamental principle stated byDiplock, L.J., in Browning v.

War Office, [1962] 3 All E.R. 1089 (C.A.), at 1094-95: '... A defendant in an action in negligence is not awrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff'": Mooney v. BritishColumbia (Attorney General), 2004 BCCA 402, 202 B.C.A.C. 74, at para. 157, per Smith J.A., concurring in the result. [40] I find Dr. Ross’s negligence did not cause Mr. Tripp’s premature death. However, the delayed diagnosis did cause pain andsuffering that he would not have experienced if the tumour had been detected in January 2018. And the defendant conceded as much.

As explained by Gonthier J. in Laferrière v. Lawson, (SCC), at p. 609: Even where statistical and factual evidence do not support a finding of causation on the balance of probabilities with respect to particulardamage (e.g. death or sickness), such evidence may still justify a finding of causation with respect to lesser damage (e.g. slightly shorterlife, greater pain). Damages [41] As I said, Dr. Ross concedes that the plaintiff is entitled to non-pecuniary damages for the additional pain and suffering thatresulted from the delayed diagnosis. The contentious issue is the quantum.

The plaintiff says an award of $100,000 is warranted. Thedefendant argues an appropriate award would be $50,000-$60,000. [42] Dr. Schipper and Dr. Moore both testified that the delay in diagnosis allowed the tumour to grow, making the surgery morecomplicated. Delay in the surgery likely made recovery more difficult and complications, such as the perforated bowel, and repeatedhospital admissions more likely. Surgery in January may not have required removal of the pancreas, which may have caused Mr. Tripp’sdiabetes. As well, Mr.

Tripp had to live with the knowledge that his doctor had missed the diagnosis; he had to live with the “what ifs?”. [43] As Gonthier J. said in Laferrière v. Lawson (p. 610): First, I am convinced that Mrs. Dupuis experienced a type of psychological suffering which was directly related to the appellant's failureto inform his patient of her condition. From 1975 until her death, she experienced the horrible rhythms of her disease and the regular andseemingly ineffectual treatments and medications in the knowledge that things might have been different had she known earlier and beentreated earlier.

Her chances may not have been sufficient for the law, but they were very real to her, no doubt. I think that it was alsoprobable that the pain which she experienced as a result of the advancing disease was all the more distressing given that knowledge.While she was a person who was concerned with her health and prepared to seek the best medical evidence and abide by it, she wasdenied the opportunity and choice of doing so by reason of the appellant's failure to inform her. This led, for instance, to her continueduse of contraception pills which she would have been advised against had her condition been known.

I would therefore agree withVallerand J.A.'s specific recognition of psychological damages, and, given the exceptional nature of this case, I would increase theamount in question to $10,000. [44] Quantifying non-pecuniary damages is an arbitrary exercise. The parties did not provide much authority on the appropriateamount and the cases they did provide are dated. [45] Mr. Tripp’s son testified about his father’s last years, his long and painful recovery from surgery, the harsh rounds of

chemotherapy, his inability to carry on his usual activities, and his depression. While he may have had similar difficulties even if thecancer had been detected in a timely way, I am satisfied that the delay in diagnosis exacerbated his suffering. And, as I said, thedefendant has conceded as much. In my view, an award of $75,000 is appropriate in this case. [46] Section 80(3) of The Court of King’s Bench Act, C.C.S.M. c. C280, mandates that an award of non-pecuniary damages includean amount for the loss of opportunity to invest. No submissions were made on this point.

I note that in the somewhat dated case of Kobsv. Merchants Hotel et al., (MB CA), 70 Man. R. (2d) 178 (C.A.), the court held that, in the absence of evidence, thediscount rate of 3% in s. 83(2) is an appropriate guideline. I am awarding 3% for loss of opportunity to invest. Provisional Damages Non-pecuniary Damages [47] Had I found that Dr. Tripp’s negligence caused Mr. Tripp’s early death, I would have awarded a larger sum for non-pecuniarydamages.

The plaintiff claims an award of $150,000 would be appropriate if causation were established; the defendant says a properamount would be $120,000. [48] In The Estate of Mary Fleury et al v. Kassim, 2022 ONSC 2464, the deceased died from cancer of the appendix as a result ofthe defendant’s failure to diagnose cancer when her appendix was removed five years earlier. The court awarded non-pecuniarydamages of $120,000 to compensate for the suffering caused by a long drawn out death and for living for a year with the knowledge thatshe was going to die. [49] In Stell v. Obedkoff, [2000] O.J.

No. 4011 (S.C.) (QL), the court found that the defendant doctor’s negligence led to delayeddiagnosis of breast cancer and the deceased’s death. He awarded non-pecuniary damages of $135,000 to compensate her for 4.5 years ofpain and discomfort, anxiety and disruption to her family life. [50] Had I found Dr. Ross’s negligence resulted in Mr. Tripp’s death, I would have awarded non-pecuniary damages of $150,000 plus3% for loss of opportunity to invest. Past Loss of Income [51] The plaintiff claims the amount that Mr.

Tripp would have earned from January 2020 (after he stopped working) until his deathin February 2022. The plaintiff’s expert, Gregory Gillis, quantified that amount at $178,500. In determining that amount, Mr. Gillisassumed that Mr. Tripp would have worked full-time during the two-year period. That is to say, he did not consider any contingenciesthat may have affected his ability to work. [52] On the other hand, the defendant’s expert, Alan Martyszenko, quantified the amount that Mr. Tripp would have earned in thattwo-year period at $139,851. Both Mr. Gillis and Mr.

Martyszenko are very experienced at making these calculations and have testifiednumerous times. The difference in their calculations is based on the fact that Mr. Martyszenko relied upon the fact that, because ofillness or work shortage, Mr. Tripp had worked only 79% of available hours in the year before he stopped working. He, therefore,assumed Mr. Tripp would work only 79% in 2020-2022. [53] I am not sure that either approach is reasonable. In quantifying these damages, we assume that Mr. Tripp’s cancer would havebeen diagnosed in January 2018 and that the subsequent treatment would have resolved it.

That is to say, the disease would not havecaused him to miss work in 2020 and 2021 to the extent he had in 2018 and 2019. So, Mr. Martyszenko’s figure relies on too high adiscount. On the other hand, Mr. Gillis used no contingencies in calculating the loss. It is reasonable to use a 10% deduction forcontingencies. Therefore, I assess the past loss of income at $160,000. Loss of Future Income [54] The plaintiff claims loss of future income in the amount of $596,649.00, which represents the present value of a future incomestream, assuming Mr. Tripp would have worked as an electrician until age 65.

The defendant says that the plaintiff is not entitled to anyamount for future loss of income. They say that this claim is precluded by s. 53(1) of The Trustee Act, C.C.S.M. c. T160, which says:

Actions by and against legalrepresentatives 53(1) All actions and causes of action intort, whether to person or property, otherthan for defamation, malicious prosecution,false imprisonment, or false arrest, in oragainst any person dying continue in oragainst his personal representative as if therepresentative were the deceased in life; butin any action brought or continued underauthority of this

section by the personalrepresentative of a deceased person for atort causing the death of the person, thedamages recoverable for the benefit of hisestate do not include any exemplarydamages or damages for loss of expectationof life and shall be calculated withoutreference to any loss or gain to his estateconsequent on his death, except that a sumin respect of funeral expenses may beincluded.

Actions par et contre des représentantspersonnels 53(1) Toutes les actions et les causesd'action pour dommages causés soit à lapersonne ou aux biens, sauf pourdiffamation, poursuite abusive, séquestrationarbitraire ou arrestation illégale à l'instanced'un mourant ou contre celui-ci sontprorogées du chef de son représentantpersonnel ou contre celui-ci comme si lereprésentant personnel était le défunt vivant.Toutefois, dans toute action intentée oucontinuée en vertu du présent

article par lereprésentant personnel du défunt fondée surun délit civil ayant causé le décès, lesdommages-intérêts recouvrables par lasuccession ne comprennent pas dedommages-intérêts exemplaires ou desdommages-intérêts pour perte d'espérance devie et sont calculés sans qu'il soit tenucompte du gain ou de la perte causés par lasuite du décès à la succession, à l'exceptiond'une somme d'argent qui peut être accordéepour les dépenses funéraires. [emphasis added] [55] Both counsel indicate that they could find no case law interpreting this provision and provided no legal argument as to how theprovision should be interpreted, other than counsel for the plaintiff saying that I should use the purposive approach to interpret theprovision.

I am not sure that the purposive approach assists the plaintiff. While there do not appear to be any Manitoba casesinterpreting s. 53(1), there is case law interpreting comparable provisions in the legislation of other provinces. In Balkos v. Cook, (ON CA), [1990] O.J. No. 1954 (C.A.) (QL), the court reviewed the history of the comparable Ontario and Englishlegislation and concluded that the legislation did not allow a claim for loss of future income.

Catzman J.A. found that the policyunderlying the exclusion is that the persons who would benefit by a future income claim were protected by dependency claims underfatal accidents legislation. He said: 21

Section 61 of the Family Law Act, 1986 is the statutory descendant of provisions found in fatal accidents legislation first enacted inthis jurisdiction in 1847: see the Act for compensating the Families of Persons killed by Accident, and for other purposes thereinmentioned, S.C. 1847, c. 6. The purpose of such legislation was to authorize proceedings to recover the loss caused to persons in thenamed classes by the death of the breadwinner, the amount of the loss being measured against the deceased's projected disposableincome: see generally, Kenneth D. Cooper-Stephenson and Iwan B. Saunders, Personal Injury Damages in Canada (Toronto: Carswell,1981),

chapter 9, and Waddams, The Law of Damages,

chapter 6. Thus, in enacting the proviso, the legislature specifically exceptedfrom its operation those rights which it had conferred by another statute in which it had articulated the persons for whose benefit and theextent to which it was as a matter of policy prepared to recognize the assertion of claims arising from the death of an individual at thehands of a wrongdoer for pecuniary loss measured by the probable future earnings of the deceased.

The claims which the legislature hasrecognized in s. 61 of the Family Law Act, 1986 are narrower, both with respect to the classes of potential beneficiary and the extent offinancial recovery, than claims of the nature of the impugned claim. In my opinion, the legislature intended to exclude, and by thelanguage in which it chose to express the proviso did exclude, the assertion of the latter type of claim by the personal representative of adeceased person. Dr. Balkos' widow, as executrix on behalf of his estate, is thus foreclosed from asserting the impugned claim. [56] Similarly, in MacLean v.

MacDonald, 2002 NSCA 30, the court found that allowing a future loss of income claim undersurvivor of action legislation would overshoot the purpose of that legislation. Cromwell J.A. (as he then was) said: [106] In my opinion, neither the context in which the Survival of Actions Act was enacted nor its purpose provides support for theinterpretation advanced by the appellants. Where death ensues from an injury wrongfully inflicted (as is alleged in this case), theappellants'

interpretation would effectively give potentially duplicative remedies to two groups of people for the wrongful death. Theestate would recover for the beneficiaries under the survival legislation and the dependants would recover under the fatal injurieslegislation. However, the Legislature specifically addressed the question of how losses of survivors should be compensated in wrongfuldeath cases when it enacted the Fatal Injuries Act. It was not the purpose of the survival legislation either to duplicate or supercede thatrecovery. See also Higgins Estate v. Arsenau, 2014 NBCA 65. [57] As the parties did not address the proper

interpretation of s. 53(1), I am reluctant to make a finding in this regard. In any event,it is unnecessary to do so because, even if I found that loss of future income was in theory recoverable, the evidence presented does notallow for a reasonable assessment of damages in this regard. Mr. Gillis’s opinion was based on the gross amount Mr. Tripp would earnif he worked until age 65. He did not take into account any contingencies, positive or negative. Nor did he account for living expensesfor Mr. Tripp during those years. In calculating income loss, it is an error in principle to fail to consider contingencies (Lantin

(Litigation Guardian for) v. Sokolies, [2019] M.J. No. 304, 2019 MBCA 115. And it would be an error to award a sum that did not takeliving expenses into account. As explained in Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, (SCC),[1994] 1 S.C.R. 114 (QL): 28 A number of considerations suggest that a deduction for personal living expenses should be made from the award for lost earningcapacity during the "lost years". The first is the fact that the projected earnings could not have been earned except on the supposition thatthe plaintiff would have been alive to earn them.

There can be no capacity to earn without a life. The maintenance of that life requiresexpenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenseshaving been incurred. It follows that such expenses may appropriately be deducted from the award. Against this, it is argued that ifJessica had been born a millionaire, her personal living expenses during the "lost years" would have been met from other sources.

Butthis does not negate the fact that in order to earn income one must live and incur the attendant expenses. 29 It can be argued that not to make a deduction for personal living expenses is to introduce into the award for lost earning capacity forthe "lost years" a measure of overcompensation akin to the duplication which the law avoids in the case of an award for lost earningsduring the plaintiff's actual lifespan.

This deduction has been justified for the years before the plaintiff's actual projected death, on theground that it avoids duplication between the award for cost of care and the award for lost earning capacity. But in fact, the "lived years"and the "lost years" cannot be so easily distinguished. The same reasoning applies to both: had the plaintiff been in a position to earn themonies represented by the award for lost earning capacity, she would have had to spend a portion of them for living expenses.

Not torecognize this is to introduce an element of duplication and to put the plaintiff in a better position than she would have been in had sheactually earned the monies in question. [58] While the court may be able to estimate an appropriate percentage to deduct for contingencies in the absence of evidence(Webster v. Chapman, (MB KB), [1996] 9 W.W.R. 652, M.J.

No. 384 (QL), at para. 126), estimating future livingexpenses requires evidence as to the plaintiff’s lifestyle. [59] Plaintiff’s counsel said that he was not able to get the evidence necessary to establish what amounts should be deducted from thelost income claim and suggested that I refer the matter back to Mr. Gillis to make the necessary calculations. This would be an unusualpractice, and, in any event, Mr. Gillis’s assumptions would have to be based on evidence and that evidence, according to counsel, is notavailable. In Lantin (Litigation Guardian ) v.

Sokolies, 2019 MBCA 115, the trial judge amended her original decision when it wasbrought to her attention that she had failed to include an amount for loss of opportunity to invest. The Court of Appeal held that she wasnot entitled to do so because her decision had been appealed and replaced by a decision of the Court of Appeal.

While the decision had todo with the application of the “slip rule”, the comments of Mainella J.A. are apt here: [35] The unusual path of this litigation illustrates the importance of the comments made in Danyluk v Ainsworth Technologies Inc, 2001SCC 44, that a litigant has an entitlement to only "one bite at the cherry" (at para 18); thereafter, other interests, such as finality, comeinto play.

It is well settled that damages resulting from a discrete cause of action should be assessed and recovered once for all at thetrial (subject to modification on appeal) (see The City of Montreal v McGee (1900), (SCC), 30 SCR 582 at 589; andKrangle (Guardian ad litem of) v Brisco, 2002 SCC 9 at para 21). This is in keeping with the legislative direction applicable to all civillitigation that, "As far as possible, a multiplicity of proceedings shall be avoided" (section 94 of the QB Act). [36] Adjusting damages for inflation and lost opportunity is a routine part of civil litigation.

Counsel are expected to raise all relevantarguments at the first assessment. Here, the plaintiff was represented by experienced counsel, had a fair trial and appeal, and ultimatelyreceived a large award of damages for the unfortunate losses caused by the hospital's negligence. [60] The plaintiff also claims an allowance of $21,500 for investment management. The purpose of awarding an amount forinvestment management is to allow the plaintiff to obtain advice on how to invest the award of damages to ensure that the awardmaintains its value.

An investment management allowance may be important where the award is for a plaintiff who has survived theinjury. There is no need for it where the plaintiff has passed away and the award is going to his estate. The Fatal Accidents Act [61] The defendant concedes that if Dr. Ross’s negligence caused Mr. Tripp’s death, his three sons and three grandchildren areentitled to the amounts set out in The Fatal Accidents Act, C.C.S.M., c. F50 (“FAA”) for loss of guidance, care and companionship (atotal of $90,802.78).

However, they say that Hayley Tripp’s estate is not entitled to the amount she would have been entitled to receiveunder the FAA if she was still alive. They rely on s. 53(3) of The Trustee Act, C.C.S.M., c. T160, which says:

Claim for loss of guidance not continued 53(3) Where a person dies and he was a person for whose benefit an action has been or may be brought under The Fatal Accidents Act for damages for loss of guidance, care and companionship, that action or cause of action for damages for loss of guidance, care or companionship does not continue in his personal representation or survive for the benefit of his estate under subsection (1) or under any other Act of the Legislature or rule of law. Non-continuation d'une action pour perte d'orientation 53(3) L'action ou la cause d'action qui ont été ou qui auraient pu être intentées en application de la

Loi sur les accidents mortels afin d'obtenir, au bénéfice d'une personne décédée, des dommages-intérêts pour cause de perte d'orientation, de soins ou de compagnie ne peuvent être continuées par le représentant personnel de celle-ci ni survivre au bénéfice de sa succession en application du paragraphe (1), de toute autre loi de la Législature ou règle de droit. [ 62 ] No authority was provided regarding the

interpretation of this provision. However, in my view, the wording is not ambiguous. The ordinary meaning of the words support the defendant’s

interpretation. (See La Presse Inc. v. Quebec , 2023 SCC 22 , at paras. 22-24 re: interpreting legislation that is not ambiguous.) [ 63 ] I note that there was evidence that Mr. Tripp had four siblings, but no claim was made for them under the FAA . Other Heads of Damage [ 64 ] The defendant concedes that, if Dr. Ross’s negligence led to Mr.

Tripp’s death, the plaintiff is entitled to be compensated for funeral expenses and the subrogated Manitoba Health Services account, which amounts the parties agree are, respectively, $14,330 and $25,000. [ 65 ] Had I awarded pecuniary damages, the awards would have included pre-judgment and post-judgment interest as set out in ss. 80 and 84 of The King’s Bench Act , C.C.S.M. c. C280 . conclusion [ 66 ] Mr. Tripp’s death is a great loss for his three sons, compounded by the death of their mother within a year.

It must have been difficult for them to sit through the trial and listen to the legal debate about compensation when Dr. Ross’s negligence was admitted. But, while the law of tort attempts to ensure reasonable standards of conduct, it only creates accountability for wrongful conduct where loss is caused by it. [ 67 ] I find that Dr. Ross’s negligence was not the cause of Mr. Tripp’s untimely death. However, as a result of the negligence, Mr. Tripp suffered more than he would have, had his cancer been diagnosed earlier.

As a result, the plaintiff is entitled to non-pecuniary damages of $75,000 plus 3% for loss of opportunity to invest. [ 68 ] Costs may be spoken to if they cannot be agreed upon. J.