IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110429

Docket: 02-5057

Registry:
Victoria

Between:

Benjamin John
Sivertson, by his guardian ad litem, Pamela Dawn Sivertson, and the said Pamela
Dawn Sivertson and Darren James Sivertson

Plaintiffs

And:

Kerri-Lea Dutrisac,
Capital Regional District, Capital Health Region, Her Majesty the Queen in
Right of the Province of British Columbia, Ivanka Lupenec, Diane Hart, Shelly
Harnadek, Mary-Jane Kellington, and Marcia L. Thorneycroft

Defendants

Before: The Honourable Madam
Justice Boyd

Reasons for Judgment

In
Chambers

1.0        
Introduction:

[1]          
The defendants, the Capital Health Region (“CHR”) and Ms. Kerri-Lea
Dutrisac (“Dutrisac”) jointly apply pursuant to Rule 12-6(5)(i) and (ii)
to set aside the Notice Requiring Trial By Jury filed by the Plaintiffs on
November 17, 2005.

2.0        
Background:

[2]          
I will spend little time reviewing the facts in this matter since I have
done so at some length in my companion ruling on today’s date (see 2011 BCSC 558). 
Suffice it to say that this is an action in which the infant plaintiff claims
damages for a brain injury suffered on June 11, 2001 while in the care of
the defendant Dutrisac who was the owner and operator of a licensed daycare.  While
I have dismissed the action against the CHR in the companion ruling, I will
nevertheless, for the purpose of appeal, proceed to consider this application
as the joint application of the defendants.

[3]          
The plaintiffs allege that the defendant Dutrisac was negligent in her
care of the infant plaintiff, resulting in his fall to the floor where he
struck his head and suffered a brain injury.  They claim that following the
initial injury, Dutrisac further exacerbated that injury when she allegedly
shook or jostled the infant so as to have him remain conscious.  The plaintiffs’
claim against the CHR is that it was negligent in its ongoing inspections of
the daycare facility and in continuing to license that facility notwithstanding
a number of complaints made by various parents over the weeks and months
preceding the infant plaintiff’s injury.

2.1        
The defendants’ position:

Both defendants submit that
this action is not suitable for trial before a judge and jury for a number of
reasons, which I will summarize below:

2.2        
The plaintiffs’ claim against the CHR involves a particularly complex
legal analysis:

[4]          
A determination of liability will require the jury to grapple with the
judge’s jury charge which will address a multiplicity of issues:

·        
the CHR’s exercise of statutory powers under the Community
Care Facility Act;

·        
whether or not that Act confers a private law duty of care on the
CHR and its employees;

·        
whether or not foreseeability and proximity exist sufficient to
establish a prima facie duty of care by the CHR and its employees to the
infant plaintiff; and finally,

·        
even if such a prima facie duty of care is established,
whether there are policy reasons which militate against such a duty being
imposed in this case.

[5]          
Further the plaintiffs’ claim against the CHR will require the
application of the complex “but for” causation analysis to determine whether
any alleged failure on the part of the licensing officers caused or materially
contributed to the infant plaintiff’s injury.

2.3        
The plaintiffs’ claim against both the CHR and Dutrisac will require an
apportionment of liability as between the defendants:

[6]          
Further the jury will be required to grapple with the apportionment of
liability between the tortious acts of the CHR and the co-defendant, Dutrisac.  The
jury will have to determine the different standards of care applicable to the
CHR (and its employees) and Dutrisac:

·        
what duty of care was owed by each;

·        
whether that duty of care was met;

·        
the inter-relationship between the actions of the defendants; and

·        
finally, the degree of fault that each should bear.

2.4        
The plaintiffs’ claim against the CHR and Dutrisac will involve a
detailed analysis of complex scientific evidence regarding the nature of the
injury:

[7]          
The action will require the jury to consider some very complex
scientific evidence about the nature of the infant plaintiff’s brain injury and
the impact his pre-existing subdural hematomas would have had on his ultimate
outcome, in any event.  The defendants will lead evidence at trial that the
infant plaintiff suffered an earlier brain injury after falling from a counter in
his parents’ home or at some point beyond that.  As the CHR’s counsel has noted
in her submissions, the jury will be faced with three issues:

(i)           
whether or not the infant plaintiff would have been cognitively or
physically impaired in any event as a result of the earlier brain injury;

(ii)         
whether this may have constituted a crumbling skull such that he would
have been prone to re-injury in any event; and

(iii)        
whether this pre-existing injury constituted a thin skull scenario.

[8]          
Mr. Lindsay submits that these issues are doubly complicated by the
fact that there has been an evolution in the plaintiffs’ medical expert’s
theory regarding the infant plaintiff’s injury.  Initially Dr. Wambera
diagnosed the infant plaintiff as exhibiting a brain injury consistent with a
“shaken baby “mechanism of injury.  Indeed it is this diagnosis which underlay
the criminal charges initially laid against Dutrisac which led to two trials—one
resulting in a mistrial by reason of a hung jury, and the second, in an
acquittal.

[9]          
More recently, following the service of the defence medical reports
which raised the issue of pre-existing subdural hematomas, Dr. Wambera has
amended her opinion.  She now opines that the “primary brain injury” was caused
by the infant’s fall off the couch with impact to the back of the head at the
defendant Dutrisac’s daycare, causing the acute subdural hematoma and the focal
brain injury.  She notes that “(w)hile the chronic subdural hematomas
predisposed him to subsequent repeat bleeds into the subdural space, they were
not contributing to any active, ongoing or deteriorating neurological
condition”.  However , rather than totalling abandoning the “shaken baby
syndrome” mechanism of injury, Dr. Wambera has apparently retained the
acceleration/deceleration theory of injury by opining that the infant plaintiff’s
brain injury was at least exacerbated by the “jostling” of the infant after the
fall.  As she explains, the forces of ‘acceleration and deceleration’ could
have exacerbated the primary brain injury caused by the impact at the time of
the fall, as well as causing the retinal haemorrhages.

[10]       
A review of the medical-legal reports filed to date reveals that there
is a substantial disagreement between the plaintiffs’ and the defence medical
experts involving the nature and cause of the infant plaintiff’s brain injury
and the existence of a prior brain injury and its effects.

[11]       
Clearly the jury will be faced with the very difficult task of
absorbing, distilling and processing the various medical experts’ evidence,
including the evidence of pediatric neuroradiologists, neurologists,
neuropathologists and neuropsychologists.  Since the evidence is so complex, I
am advised that counsel will be ordering daily transcripts of the trial
evidence, all of which will require a careful review by the jury.

[12]       
If the jury does determine there was any pre-existing brain injury, then
the jury will then have to grapple with the difficult task of determining which
damages are attributable to the pre-existing condition and which are
attributable to the injury subsequently suffered at Dutrisac’s daycare.

3.0        
The plaintiffs’ position:

[13]       
The plaintiffs’ counsel opposes this application on two grounds:

[14]       
Firstly, relying on the decision in Holland v. Hallonquist, [1968]
B.C.J. No. 50 (B.C.C.A.), he submits that the defendants have failed to
file the affidavit evidence required to support an application to strike a jury
notice.  He refers here to the lengthy affidavits sworn by the defendant’s
counsel in that Holland, attesting to the issues raised and the evidence
which would be adduced at trial.  In my view, the practice followed by the
Courts in 1968, prior to the amendments to the Evidence Act and the Rules
of Court which required the filing of expert evidence well before trial,
are of no assistance here.  In our case, all of the expert reports which the
parties intend to rely on at trial, save for some additional reply reports
which have yet to be filed, are all before the Court, appended to the
Affidavits filed.

[15]       
Secondly, the plaintiffs’ counsel rejects the notion that this case
involves any difficult scientific investigation or that the issues are of an
intricate or complex nature.  Relying on the recent decisions in Furukawa v.
Allan, 2007 BCSC 283, Renaerts (Guardian of) v. Korn, [1998]
B.C.J. No. 999 (S.C.); and MacKinnon v. Ebner, [1997] B.C.J. No. 364
(S.C.), he submits that a “reasonably informed and intelligent jury is as
capable of assessing expert evidence as is a single judge”.  Provided that
counsel and the experts all do their job to assist the jury and ensure that
they understand the technical evidence, he anticipates no problems for the jury
in coping with the challenges here.

4.0        
Conclusion:

[16]       
Having considered the submissions of counsel and having reviewed the
many expert reports which have been filed, I find that there are a plethora of elements
in this case which raise issues of both complexity and intricacy.  The trial
will be long.  It will involve two sets of defendants, each involving different
standards of care.  The CHR defendants’ duty of care will be particularly
complex to determine, given the statutory scheme and whether or not that scheme
negates any private duty of care.

[17]       
However most complex of all will be the issues concerning the causation
of the infant plaintiff’s brain injury, whether there was any pre-existing
brain injury, and what damages may be attributed to the pre-existing brain
injury, if any.  The determination of these issues will require that the jury
consider and weigh the conflicting and highly complex evidence of a number of
different medical experts from a number of different specialties.

[18]       
At the heart of this debate will be the central theme of the “shaken
baby syndrome”, since, even on the basis of the plaintiffs’ expert’s amended
opinion, the acceleration/deceleration theory of injury is advanced regarding
the jostling of the child, following the initial fall.  As Mr. Lindsay has
pointed out, the Shaken Baby Syndrome or the acceleration/deceleration
mechanism of injury remains one of the most highly debated areas in the field
of forensic pathology.  The debate continues to rage in the medical and
scientific community concerning these types of injuries in infant children.  In
this regard, I take particular note of the comments of Chief Judge Crabtree of
the British Columbia Provincial Court in British Columbia (Director of
Child, Family and Community Service v. Z.B., 2011 BCPC 0072.

[19]       
I must note that while I have treated this application to strike the
jury notice as a joint defence application, in fact, in my companion ruling I
have already dismissed the action against the CHR.  In my view this does not
result in any different ruling regarding the striking of the jury notice.

[20]       
On a consideration of all of these issues, but most particularly the
medical and scientific evidence to be weighed, I find it is completely
unrealistic to believe that even a well instructed, intelligent jury would be
able to cope with the determination of all the issues here.  Thus I exercise my
discretion under the rule and order that the jury notice be struck in this
case.

“The
Honourable Madam Justice Boyd”