IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Cowie v. Draper, |
| 2010 BCSC 686 |
Date: 20100514
Docket:
S075493
Registry: Vancouver
Between:
Juliet Cowie
Plaintiff
And
Dr.
Paul Draper, Dr. Jenet Hui Fen Sun,
The
Richmond Hospital, Vancouver Coastal Health Authority,
Richmond
Health Services, Dr. John Doe, Dr. Jane Doe,
John Doe and Jane Doe
Defendants
Before: The Honourable Mr. Justice Bowden
Reasons for Judgment
Counsel for the Plaintiff: | D.C. |
Counsel for the Defendant, Dr. Draper: | R. Samtani |
Counsel for the Defendant, Vancouver | E.J.A. |
Place and Date of Trial: | Vancouver, February |
Place and Date of Judgment: | Vancouver, May 14, |
Introduction
[1]
The defendants apply under Rule 18A for an order
dismissing an action by the plaintiff on the basis that it is statute barred by
the Limitation Act, R.S.B.C. 1996, c. 266, (the Act). The
plaintiff is seeking damages for the alleged negligence of the defendants
during the birth of her first child on April 28, 2003.
[2]
In making this application, the defendants say
that the plaintiff was aware that she was injured within days of the alleged
negligence and that she was aware of the defendants involvement. In the
circumstances the defendants says there is no basis for the postponement of the
applicable two year limitation period nor was the plaintiff disabled for the
purposes of the Act.
[3]
The plaintiff says that under the Act,
the facts within her means of knowledge are not such that a reasonable person,
knowing those facts and having taken the appropriate advice, would regard them
as showing that an action against the defendants would have a reasonable
prospect of success and the plaintiff, in her own interest and taking her
personal circumstances into account, ought to be able to bring an action.
Background
Facts
[4]
On April 28, 2003, the plaintiff, while giving
birth to her daughter at the Richmond Hospital, suffered cardio-respiratory arrest
brought on by the administration of an epidural anaesthetic. She was revived
within minutes but her brain was deprived of oxygen for a sufficient period of
time to result in complex mild traumatic brain injury to the plaintiff. Her
child was delivered successfully by Caesarean section and was normal and
healthy.
[5]
Following the cardiac arrest the plaintiff was
kept on life support and remained in a coma for a period of time. Upon
recovering consciousness within three days of the birth, she was unable to
recognize her family or recall her childhood. However, after she was
discharged from the hospital, about one week after the birth, she recovered her
memories of childhood and was able to recognize her family and friends.
[6]
When the plaintiff became conscious after the
surgery she was told by hospital staff that something had gone wrong during the
birth of her child. She also understood that Dr. Draper had participated in
the procedure. The plaintiff was aware that as a result of things going wrong
she had suffered some injury. She was told by her parents and her ex-husband
that Dr. Draper had advised them that she had suffered some short term memory
loss but that may improve over time. The plaintiff was also aware that she had
suffered some physical injury including the scar from the Caesarean section.
She also experienced neck pain which continued after her discharge from the
hospital.
[7]
The plaintiff had a telephone conversation with
a professional staff member at G.F. Strong Rehabilitation Center on June 19,
2003, and received a letter from G.F. Strong the next day with information for
her regarding her return to work after a brain injury.
[8]
Before her maternity leave commenced on April
11, 2003, the plaintiff was employed at Progressive Mills Supply as an
accounting assistant. Her work consisted of collecting accounts. In July
2003, about three months after the birth of her daughter, she returned to her
employment and worked as a junior accountant in a temporary capacity to cover
the maternity leave of another employee. In March 2004, her position became
permanent. Her duties as a junior accountant involved payroll and account
balancing and she considered it to be a completely new job.
[9]
In November 2004, the plaintiff considered that
her employer was forcing her to decide between her work and her family and she
decided to leave her employment. She has not returned to work since that
time. There is no evidence from her employer that the plaintiffs work was
sub-standard.
[10]
On May 5, 2005, the plaintiff returned to
Richmond Hospital with complaints of epigastria pain. She was attended to by
Patricia Campbell, a registered nurse. Ms. Campbell deposes that the plaintiff
provided her medical history to her, which included the information that the plaintiff
had had a five minute cardiac arrest immediately post delivery and her
cognition was altered subsequent to that event.
[11]
The plaintiff delivered her second child on
August 19, 2005. Her evidence is that she did not have an epidural anaesthetic
at that time because she wanted to make sure that it was not used again.
[12]
The plaintiff appeared to have ongoing concerns
about being in a coma during her first childbirth and about her memory loss,
her mood changes and her ability to work. She expressed those concerns to Dr.
Ng on October 17, 2005 and he recorded them in his clinical records.
[13]
The plaintiff is divorced and cares for her two
children without assistance.
[14]
The plaintiff first attended on a lawyer
regarding this matter in 2006. This action was commenced by the plaintiff by writ
of summons and statement of claim filed on August 15, 2007.
[15]
Although the plaintiff knew after she awoke from
the surgery in 2003 that something had gone wrong during the birth of her
child, when asked in her examination for discovery to explain why she waited so
long to start a lawsuit she said she was in denial. She explained that she had
gone through some memory problems but thought it would just be temporary. She
said that she was not in denial about what had gone wrong during the surgery
but more in relation to her memory problems.
[16]
With regard to her memory, I note that on June
26, 2003 the plaintiff attended Dr. Sun, her family doctor. Dr. Sun, in
reference to the plaintiff, recorded in her clinical notes on that date that,
her memory returned to normal. Dr. Suns notes of subsequent visits by the plaintiff
do not disclose any complaints regarding memory loss after that date.
[17]
On January 9, 2007, the plaintiff was assessed
by Dr. Verna Amell, a clinical neuropsychologist, and Dr. Amell produced a
report on July 23, 2007. Dr. Amell states that when she assessed the plaintiff
she was dealing with the effects of a complex mild traumatic brain injury
subsequent to an anoxic event on April 28, 2003. It appears, but is not clear
from her report, that Dr. Amells assessment is based on the plaintiffs description
of her injuries and the aftermath in 2003 rather than a conclusion reached
objectively by Dr. Amell. Dr. Amell confirms that the plaintiff was aware that
she had suffered injury but that she expected that her functioning would
gradually improve. Dr. Amell opines generally that people suffering from a
complex mild traumatic brain injury will often not understand the extent of
their disability nor contemplate obtaining legal advice until they receive a
neuropsychological evaluation and then recognize the significance of their
impairment and the extent of their loss.
[18]
Dr. Amell states that upon receiving her
evaluation the plaintiff was shocked and dismayed at the impairments which were
identified and the implications to her particularly in relation to her
employment in the accounting field. I take it that the inference that the plaintiff
seeks to draw from Dr. Amells views is that until receiving Dr. Amells
report, the plaintiff did not understand the extent and nature of her
disability and the impact it would have on her future earning ability.
[19]
The plaintiff argues that she was unable to make
a decision to bring an action for compensation for her injury until she had
received the assessment from Dr. Amell. Further, the plaintiff submits, until
that report she continued to believe that any alterations in her functioning
because of her injury would gradually improve.
[20]
As a result, the plaintiff submits that the
limitation period should be postponed because the plaintiff did not have within
her means of knowledge the facts which would lead a reasonable person in the plaintiffs
circumstances and with the plaintiffs interests to believe that she had a
cause of action with a reasonable chance of success.
[21]
Alternatively, the plaintiff submits that the
running of time with respect to this action was postponed because she was under
a disability, being substantially impeded in managing her affairs.
[22]
The plaintiff also argues that the determination
of a postponement of the limitation period in relation to this action should
not be decided pursuant to Rule 18A.
[23]
In addition to denying the allegation of
negligence, the defendants submit that this action by the plaintiff is statute
barred because it was commenced more than two years after the cause of action
arose.
[24]
The defendants say that the plaintiff had
knowledge of the events giving rise to the cause of action no later than May 5,
2003. Further, the defendants submit that the plaintiff has not established
that her circumstances were so seriously significant and compelling that the
limitation period should be postponed; nor has she established that she was
disabled within the meaning of the Act and the evidence shows that she
was capable of managing her affairs.
[25]
The defendants also say that this matter may
properly be dealt with under Rule 18A and cite a number of authorities in
support of that position.
Analysis
[26]
The plaintiffs action is founded on the alleged
negligence of one or more of the defendants. The plaintiff seeks damages in
respect of the injuries to her which it is alleged occurred at the time of the
birth of her child on April 28, 2003, as a result of such negligence.
[27]
I will first deal with the plaintiffs argument
that this matter is not suitable for determination under Rule 18A.
[28]
Rule 18A(11) provides:
(11) On the hearing of an application
under subrule (1), the court may
(a) grant
judgment in favour of any party, either on an issue or generally, unless
(i) the
court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law,
or
(ii) the
court is of the opinion that it would be unjust to decide the issues on the
application,
(b) impose
terms respecting enforcement of the judgment, including a stay of execution, as
it thinks just, and
(c) award costs.
[29]
In this application there is no conflict in the
evidence. The only evidence before the court was presented by the plaintiff.
The dispute is only in relation to the application of the law to the facts as
presented by the plaintiff. I have found the facts necessary to grant judgment
under Rule 18A from the plaintiffs affidavit evidence filed at the hearing.
In my view, this matter is suitable for disposition under Rule 18A and the
court is left to apply the law to the undisputed evidence deposed to by the
plaintiff and other deponents.
[30]
The limitation period in respect of an action
for damages in respect of injury to a person is set forth in s. 3(2) of the Act
which states:
3(2) After the expiration of 2 years
after the date on which the right to do so arose a person may not bring any of
the following actions:
(a) subject to
subsection (4)(k), for damages in respect of injury to person or property,
including economic loss arising from the injury, whether based on contract,
tort or statutory duty; …
[31]
Subsection (4)(k) has no application here.
[32]
Subsection 6(3) provides that the running of
time is postponed in relation to certain actions including actions for personal
injury and for professional negligence as provided in subsection 6(4) which
states:
6(4) Time does not begin to run against
a plaintiff with respect to an action referred to in subsection (3) until the
identity of the defendant is known to the plaintiff and those facts within the
plaintiffs means of knowledge are such that a reasonable person, knowing those
facts and having taken the appropriate advice a reasonable person would seek on
those facts, would regard those facts as showing that
(a) an action on
the cause of action would, apart from the effect of the expiration of a
limitation period, have a reasonable prospect of success, and
(b) the person
whose means of knowledge is in question ought, in the persons own interests
and taking the persons circumstances into account, to be able to bring an
action.
[33]
Subsection 6(5) provides:
(5) For the purpose of subsection (4)
(a) appropriate advice, in
relation to facts, means the advice of competent persons, qualified in their
respective fields, to advise on the medical, legal and other aspects of the
facts, as the case may require,
(b) facts include
(i) the existence
of a duty owed to the plaintiff by the defendant, and
(ii) that a breach
of a duty caused injury, damage or loss to the plaintiff.
[34]
Subsection 6(6) provides that the burden of
proving that the running of time has been postponed is on the person claiming
the benefit of the postponement.
[35]
The limitation period applicable in this case is
also postponed under subsection 7(2) of the Act which provides:
7(2) If, at
the time the right to bring an action arises, a person is under a disability,
the running of time with respect to a limitation period set by this Act is
postponed so long as that person is under a disability.
[36]
Subsection 7(1) provides that: …
(a) a person is under a disability
while the person
…
(ii) is in fact
incapable of or substantially impeded in managing his or her affairs.
[37]
The onus is on the plaintiff to establish on a
balance of probabilities that the limitation period does not apply to bar her
action. In order for the plaintiffs action to be within the time limit referred
to in s. 3(2), she must establish that the running of time was postponed by s.
6(4) until at least August 15, 2005. If there is no postponement the
limitation period commences when the cause of action arose.
[38]
This Court in Ounjian v. St. Pauls Hospital,
2002 BCSC 104, referred to the four components of s. 6(4):
1. The
identity of the defendant is known to the plaintiff.
2. The
plaintiff has certain facts (including the facts set out in s. 6(5)(b))
within her means of knowledge.
3. A
reasonable person, knowing those facts and having taken the appropriate advice
a reasonable person would seek on those facts, would regard the facts as
showing that an action would have a reasonable prospect of success.
4. A
reasonable person, knowing those facts and having taken the appropriate advice
a reasonable person would seek on those facts, would regard the facts as
showing that the plaintiff ought, in her own interests and taking her
circumstances into account, to be able to bring an action.
[39]
All four components must be satisfied before
time begins to run. The plaintiff commenced her action on August 15, 2007,
thus all four components must have been satisfied by August 15, 2005 in order
for the limitation period to have expired before the commencement of the action.
[40]
Considering the facts in this case, it is clear,
and I so find, that the plaintiff knew the identity of Dr. Draper during the
time that she received medical assistance in giving birth to her daughter on
April 28, 2003 and thereafter at the Richmond Hospital.
[41]
With regard to the second component I also find
that the plaintiff had within her means of knowledge the fact that Dr. Draper
and the Richmond Hospital owed her a duty of care. Further, in my view, the
plaintiff had actual knowledge that the defendants had breached their duty to
her. The evidence establishes that by May 5, 2003, she was made aware that
something had gone wrong during the delivery of her child and that the whole
procedure had been done wrong. She also understood that Dr. Drapers care was
a component of what had gone wrong. She was also aware that as a result of
things going wrong she had suffered some injury. She was aware that Dr. Draper
had advised that she had some short term memory loss but that it may improve
over time.
[42]
The plaintiff also suffered some physical
injury. In addition to the scar from the unexpected Caesarean section, she
suffered ongoing neck pain after her discharge from the hospital. A letter
dated June 19, 2003 to the plaintiff from the G.F. Strong Rehabilitation Centre
confirmed a telephone conversation with her and included information about her
returning to work after a brain injury. In her affidavit of February 9, 2010,
the plaintiff deposed that she remembered receiving that letter but not its
contents. Dr. Amell did not say that the plaintiff was unaware that the events
of April 28, 2003 had caused her injury. I find that the plaintiff had
the necessary facts within her means of knowledge by May 5, 2003.
[43]
As to the third component, in my view, a
reasonable person in the plaintiffs position, with her knowledge of the
injuries and memory loss that she had suffered during the birth of her child,
having taken the appropriate advice, would regard those facts as showing that
an action would have a reasonable prospect of success. I find that this
component was satisfied not later than May 5, 2003.
[44]
The fourth component is perhaps the most
difficult one to apply. In Novak v. Bond, [1999] 1. S.C.R. 808, the
Supreme Court of Canada stated that the test in s.6(4)(b):
requires the
court to adopt the perspective of a reasonable person who knows the facts that
are within the plaintiffs knowledge and has taken the appropriate advice a
reasonable person would seek on those facts. Time does not begin to run until
this reasonable person would conclude that someone in the plaintiffs position could,
acting reasonably in light of his or her own circumstances and interests, bring
an action. The question posed by s. 6(4)(b) therefore becomes; in light of
his or her own particular circumstances and interests, at what point could the
plaintiff reasonably have brought an action? The reasonable person would only
consider that the plaintiff could not have brought an action at the time the
right to do so first arose if the plaintiffs own interests and circumstances
were serious, significant, and compelling. …
[45]
The authorities are clear that the exact extent
of the loss of the plaintiff need not be known for the cause of action to
accrue. It accrues once the plaintiff knows that some injury has occurred and
has identified the tortfeasor. (Peixeriro v. Haberman, [1997] 3 S.C.R.
549).
[46]
A comparison between Ms. Novaks circumstances
and those of the plaintiff is instructive. Ms. Novak was diagnosed with cancer
during the limitation period but decided not to commence an action preferring
instead to concentrate on maintaining her health and a positive belief that the
cancer had been cured. After the expiry of the limitation period, the cancer recurred.
It had spread to her spine, liver and lungs and clearly represented a serious
substantial and compelling condition which had appeared outside of the
limitation period such that she could not reasonably have commenced a lawsuit
at the time the cause of action arose. In the plaintiffs case, she returned
to work after only four months and continued to work until near to the time
when she became pregnant with her second child. The plaintiff did not need any
assistance in raising her children nor has a physician suggested that she
required any assistance.
[47]
At one point, Ms. Novak believed that her cancer
had resolved. In the case at bar, the evidence indicates that plaintiff was
always aware of the injuries she suffered during the birth of her first child.
This is evident from her discussion with Dr. Ng and her statement that she
did not want an epidural during the delivery of her second child. There is no
indication that there was any change in her circumstances between May 2003, and
the date that she filed a writ in this matter.
[48]
The memory problems of the plaintiff are not in
any way similar to the return of a life threatening illness to Ms. Novak which
led her to initiate legal action outside of the normal limitation period.
[49]
The plaintiff relies on the decision of the
British Columbia Court of Appeal in Brooks v. South Fraser Health Region,
2009 BCCA 150. In that case, the Court of Appeal upheld the decision of the
chambers judge and concluded that the limitation period should be postponed in
circumstances where the plaintiff was not aware until after the expiry of the
limitation period that a transient injury which she originally suffered caused
another injury of a permanent nature. At the time of the original injury, Ms.
Brooks was advised that she had no physical sequelae from the delivery of her
child and she was satisfied with the answers that her doctor provided to her
questions. The Court of Appeal was of the view that a reasonable person would
not have sought legal advice until realizing the damage was more than transient
in nature and thus the running of time in the limitation period was postponed
until Ms. Brooks was diagnosed with a more serious and permanent condition.
[50]
The case at bar is quite different. The
plaintiff was aware of both cognitive and physical sequelae. She has averred
in her affidavit that from the date of her discharge from the hospital until
the date of her affidavit she has experienced back pain, a limp and headaches.
In respect of her cognitive problems and, in particular, those involving memory
loss, it is clear that she was aware of her memory problems from the time she was
discharged from the hospital. She has said in her affidavit that she was told
that her memory loss may improve over time. The evidence shows that the
circumstances of the plaintiff did not really change from the time of the birth
of her first child until the issuing of the writ.
[51]
The plaintiff submits that until her assessment
by Dr. Amell she was impaired in her ability to make judgments and was unable
to make a decision to bring an action for compensation for her injury.
[52]
That argument does not take into account that
Dr. Amells report does not purport to be retrospective. Her opinions appear
to be based on tests done on July 23, 2007. Even if her assessment was
retrospective, Dr. Amells report indicates that the plaintiff had the
cognitive ability to bring an action. One example of her findings in that
regard is that the plaintiffs general comprehension and verbal reasoning was
also average, consistent with how she presents in general conversation. With
regard to her memory, Dr. Amell stated, On general memory testing Juliet
obtained scores in the average to superior range of functioning. Her immediate
recall of paragraph length stories was accurate in detail to recall a half hour
later that included additional details demonstrating the benefit of
consolidation of information. Juliet was also accurate in the recall of faces
and family picture scenes, demonstrating keen observational abilities and
episodic recall.
[53]
On June 26, 2003, about two months after the
birth of her daughter, her family doctor, Dr. Sun, recorded in his notes
regarding her visit that her memory was normal. That visit occurred one week
after the G.F. Strong Rehabilitation Center had sent a letter to the plaintiff
regarding returning to work following a brain injury.
[54]
Dr. Amells assessment of the effects of a
complex mild traumatic brain injury on the plaintiff took place outside the
running of the limitation period. Even if the plaintiff was dealing with those
effects during the currency of the limitation period there is no indication
that that precluded the plaintiff from commencing an action. There appears to
have been little change in the plaintiffs circumstances from the running of
the limitation period until 2006, when the plaintiff first attended a lawyer in
respect of this matter.
[55]
During the running of the limitation period it
is significant that the plaintiff was re-hired to a temporary position in July,
2003 and was then promoted to the full-time position of junior accountant in
March, 2004. She left the job because she decided to choose her family over
her work. There is no evidence that her work was sub-standard. The plaintiff
had no difficulty raising her two children and needed no assistance to do so.
When she encountered marital difficulties she was able to engage the legal
process to obtain a divorce, and also a restraining order. In my view, the
evidence does not explain why the plaintiff could not have engaged the legal
system during the running of the two year limitation period in this matter.
[56]
Even if I accept that the plaintiff encountered
some difficulties with her children, her work and her marriage, in my view,
those are not serious, compelling and significant circumstances that would
warrant the postponement of the running of the limitation period.
[57]
In the end result, while I accept that the
plaintiff suffered adverse effects resulting from the injuries she sustained on
April 28, 2003, applying the test from Novak to the facts and
circumstances of this case, her interests and circumstances were not so
serious, significant and compelling as to justify the postponement of the
running of time and allow her action to proceed.
[58]
The application of the defendants is allowed and
the plaintiffs action is dismissed with costs at Scale B.
Mr.
Justice Bowden