Kimberley Dawn Kealey and William Kevin Kealey, plaintiffs



Download 141.47 Kb.
Date16.03.2021
Size141.47 Kb.

** Unedited **

Indexed as:

Kealey v. Berezowski

Between

Kimberley Dawn Kealey and William Kevin Kealey, plaintiffs,

and

Reva Berezowski and The Grey Bruce Regional Health Centre,



defendants

[1996] O.J. No. 2460

DRS 96‑09983

Court File No. 93‑CQ‑64495

Ontario Court of Justice (General Division)

Lax J.


Heard: April 9‑12, and 15‑17, 1996.

Judgment: July 4, 1996.

(65 pp.)

Counsel:


Roderick M. Mcleod, Q.C. and Michael Kerr for the

plaintiffs.

Sheena J. MacAskill and Karen F. Douglas for the

defendants.

[para1] LAX J.:‑‑ This case raises a novel issue. It

involves a consideration of the damages which are recoverable

for a wrongful pregnancy. The facts are straightforward.

Kimberley and Kevin Kealey are the parents of three healthy

daughters: Brittany, Megan and Ashley. In 1991, when

Brittany was 4 years of age and Megan was 2 years of age, Mr.

and Mrs. Kealey decided that they liked the size of their

family and did not want more children. Specifically, Mrs.

Kealey did not wish to undergo another pregnancy. At her

request, she was referred by her family doctor to the

defendant physician in this action and Dr. Berezowski

performed a sterilization procedure on Mrs. Kealey in July

1991. The procedure is referred to as a tubal ligation. The

procedure failed and, in September 1992, Mrs. Kealey gave

birth to a third daughter. Ashley is a healthy, normal child

and much‑loved by her parents. Nevertheless, the Kealey's

have pursued this action (the action was discontinued against

the hospital) alleging that Dr. Berezowski was negligent in

performing the tubal ligation. The damages claimed include a

claim for the cost of rearing Ashley.

[para2] In Doiron et al. v. Orr et al. (1978), 20 O.R.

(2d) 71, 86 D.L.R. (3d) 719 (Ont. H.C.J.), a claim of this

nature was advanced and, in obiter, was rejected as being

"grotesque". There, it was found that the plaintiff's

pregnancy did not occur as a result of the physician's

negligence. Here, I have concluded that Dr. Berezowski was

negligent and that the plaintiffs are entitled to damages

which I assess at $40,094.03. For reasons that are different

from those of Garrett J. in Doiron, I have concluded that no

damages are recoverable for the cost of raising Ashley.

...

Conclusions on Liability



[para33] The evidence establishes that Mrs. Kealey

understood that there was a risk of failure with the Filshie

clip procedure. There is no issue about informed consent.

Dr. Berezowski gave no warranty against future pregnancies but

she was under a duty to take reasonable care to perform the

procedure in accordance with the accepted standard of care.

The procedure is one of the more routine and less complicated

procedures which obstetricians and gynecologists perform.

While any of the theories advanced could account for Mrs.

Kealey's pregnancy, I am satisfied that the most likely

explanation for Mrs. Kealey's pregnancy is that it resulted

from the failure of Dr. Berezowski to apply the clip to the

right fallopian tube or to apply it in such a manner that it

fully occluded this tube.

[para34] The Filshie clip has the largest capacity of all

the tube occluding clips which are available to physicians.

Even if the clip was applied over both the fallopian tube and

the round ligament, it ought to have locked over both

structures and occluded the tube. Similarly, had the clip

been properly applied to the fallopian tube, but caught the

peritoneum, nevertheless, it ought to have occluded the tube.

There is no persuasive evidence that there was a mechanical

failure of the clip or applicator. It is entirely

speculative. The evidence of defective clips at other

hospitals and at other times is remote and arguably

irrelevant. Given the proximity of the round ligament to the

isthmic portion of the fallopian tube, given their resemblance

in size and colour at that point, given the observations of

Dr. Usher‑Owen during the re‑sterilization, and given that

there was no failure of the clip on the left fallopian tube, I

am satisfied that the weight of the evidence establishes that

Dr. Berezowski was negligent in the manner in which I have

described.

Damages


Law

[para35] Because of the novelty of the legal point which

this case raises, I begin my discussion of the damages issue

by turning first to the scope of the damages which are

recoverable consequent on the negligence of the defendant. A

definitional framework is required as the terms "wrongful

life", "wrongful birth" and "wrongful pregnancy" are sometimes

confused.

Definitions

[para36] A "wrongful birth" case normally arises in an

action instituted by parents of a child who is born with birth

defects as a result of a planned pregnancy. The legal basis

for the cause of action derives from the post‑conception

interference by the tortfeasor with the mother's lawful right

to terminate the pregnancy had an informed decision been

available to her.

[para37] "Wrongful life" claims are also claims which

arise in cases of planned pregnancies and where the child is

born with birth defects. The distinction is that these claims

are normally advanced by the infant plaintiff or on his or her

behalf and sometimes together with a derivative claim by the

parents. These claims can arise pre‑conception as in the case

of a failed sterilization or post‑conception as in the case of

a failed abortion or improper genetic screening. A "wrongful

life" claim alleges that the tortfeasor, invariably a

physician, owes a duty of care to the child which is breached

by the physician's failure to give the child's parents the

opportunity to terminate his or her life. In Canada and in

many other jurisdictions, there is no independent cause of

action by an injured child for "wrongful life": Arndt v.

Smith (1994), 93 B.C.L.R. (2d) 220 (B.C.S.C.), aff'd (1995), 6

B.C.L.R. (3d) 201 (B.C.C.A.).

[para38] This is a case of "wrongful pregnancy". Unlike

"wrongful birth" and "wrongful life" cases, the act here

complained of is always pre‑conception. The claimants are

parents who allege that the defendant's negligence has caused

an unwanted pregnancy and birth. The negligence often occurs

through a failed sterilization or through the preparation or

dispensing of a contraceptive medication. The claim has been

advanced for children born healthy and for those born

unhealthy. In either case, the child is unplanned. Courts

have recognized the viability of this claim which may be

advanced in contract or tort, although it is more usually

advanced in tort. Courts have diverged on the appropriate

measure of damages.

Judicial Approaches to Damages for Wrongful Pregnancy

[para39] There would appear to be three principal

approaches which courts have used to deal with damages

consequent upon a wrongful pregnancy. (1) Total recovery for

all reasonably foreseeable damages based on ordinary

principles of recovery in tort law. With this approach,

damages may be recovered for the pecuniary and non‑pecuniary

costs associated with the birth as well as for the economic

costs of raising the child. (2) The "offset/benefits"

approach. Here, recovery is permitted for birth costs as well

as the consequent economic costs of child‑rearing. However,

the recoverable damages are offset by the benefits which the

birth and rearing of a child normally brings to its parents.

(3) The "limited damages" approach permits recovery for the

unplanned pregnancy but not for the unplanned child.

Accordingly, the damages consequent on the pregnancy and birth

of the child are recoverable but no damages are awarded for

the child‑rearing costs. These are denied for reasons of

public policy, causation or both.

...

Canadian Authorities



[para53] In Canada, there is no unified approach to the

award of damages for wrongful pregnancy nor to the extent of

the damages. It has been considered in obiter by the Alberta

Court of Appeal where it was stated that a claim for rearing a

child was "on the face of it ridiculous": Cryderman v.

Ringrose, [1978] 3 W.W.R. 481 (Alta. C.A.). In Newfoundland,

the Trial Division refused to allow child‑rearing costs:

Keats v. Pearce (1984), 48 Nfld. & P.E.I.R. 102. Noel J. did

not think that the mother had suffered any injury (("[T]his

was clearly an unwanted pregnancy‑not an unwanted child".) (at

pp. 103‑104)). He was of the view that the mother should have

mitigated her loss by arranging for an adoption of the child.

The question remains open in New Brunswick: Grey v. Webster

(1984), 14 D.L.R. (4th) 706 (N.B.Q.B.).

[para54] In Ontario, Garrett J. in Doiron v. Orr refused

recovery ((the claim being "simply grotesque" (at 723)) and,

in Biggs et al v. Richter, Court File No. 220544/84 (Ont.

Dist. Ct.) (Judgment rendered October 23, 1989), Judge Webb

did not give an opinion on the statement of Garrett J. in

Doiron as there was inadequate evidence to permit an

assessment of these damages. In both Doiron and Biggs, the

actions against the doctors were dismissed as negligence was

not established.

[para55] In British Columbia, future care costs were

allowed where the defendant doctor caused injuries to the

foetus in failing to carry out a therapeutic abortion and the

child was born with severe disabilities. The British Columbia

Supreme Court adopted the reasoning of the English Court of

Appeal in Emeh and found the defendant physician liable for

all costs associated with the child's birth. The Court of

Appeal affirmed that ordinary negligence principles applied:

Cherry (Guardian ad litem of) v. Borsman (1990), 75 D.L.R.

(4th) 668; 5 C.C.L.T. (2d) 243 (B.C.S.C.), additional reasons

at (1991), 5 C.C.L.T. 243 at 298, var'd (1992), 94 D.L.R.

(4th) 487, 12 C.C.L.T. (2d) 137 (B.C.C.A.).

[para56] In Quebec, Judge in Chief Deschenes was called

upon to consider the issue in Cataford v. Moreau, (1978), 114

D.L.R. (3d) 585 (Que. S.C.) (in translation). The Court

concluded that it was not contrary to public policy in Quebec

to grant damages following the birth of a healthy child but

did not decide whether, in law, the costs of the child

constituted a damage. However, damages were assessed. When

the costs of maintenance were offset by the statutory social

benefits received for the child, there was a difference of

about $1000. The court concluded that the moral and financial

benefits which the child would provide to his parents would

exceed this amount. In effect, the Court adopted the

"offset/benefits" approach.

[para57] This was also the approach which the Quebec Court

of Appeal followed in Suite c. Cooke [1995] A.Q. No. 696.

There, damages were agreed but, the Court held (per

Chamberland J.) that in a case of this kind, the Court should

evaluate:

...the whole of the situation; the costs of maintenance,

the financial support which the child could eventually

bring to his parents, the inconvenience and the moral

sufferings which the presence of an undesired child in

the family will cause, the joys and the comfort which

this same child will be bring...

Analysis


[para58] The authorities which I have reviewed amply

illustrate that there is no approach which is free from

difficulty. A claim for child‑rearing costs juxtaposes the

private world of tort law with a world that is imbued with

personal and public views of morality. It asks whether tort

law is bold enough or foolish enough to embrace as a harm that

which we so clearly regard as a good. It demands that we

examine whether tort theory is compromised or validated

depending on the approach which is chosen. The claim raises

questions about the nature of injury, the limits of the

doctrine of foreseeability and the congruence of this doctrine

with the assessment of damages. Courts have struggled with

the novel question at issue in this case because, in the

absence of legislative guidelines for assessing damages of

this kind, they are driven back on standard principles of

negligence law or on public policy. Both may be inadequate

for the task.

[para59] In the case of public policy, arguments can be

advanced to both support and to deny recovery for

child‑rearing costs. It is clear that there is no rule of

public policy in Ontario requiring people to have children or

preventing them from deciding not to have children or

determining the number of children they choose to have. A

woman's right to reproductive choice is lawful and

increasingly recognized: R. v. Morgentaler, Smoling and

Scott, [1988] 1 S.C.R. 30; Tremblay v. Daigle, [1989] 2 S.C.R.

530. Parents' rights to plan and limit, if they so choose,

the size of their families are the accepted community norms of

today.

[para60] The time has long passed when a court is free (if



indeed, there ever was such a time) to dismiss a claim such as

this as "grotesque" or "ridiculous". We have reliable birth

control and sterilization procedures and family planning is

both accepted and encouraged. The norms and standards of

community which informed the values of an agrarian and

religious society have been replaced with the economic

pressures to produce an educated and skilled labour force.

Families are smaller and expensive to maintain. Children are

no longer an economic unit of production. On the contrary,

they are an economic drain for some considerable number of

years. All of this is true.

[para61] However, it is also true that the notion of

family however configured, whether nuclear or extended,

whether partnered or single, whether heterosexual or same‑sex,

whether conventional or unconventional, remains the central

and cherished structure in our lives. And, for the most part,

children figure very prominently at its core without regard to

their economic and sometimes emotional costs. In our

hierarchy of societal values, the benefits which a child

brings are regarded as so essentially worthwhile that we tend

to regard those who are childless by choice as unusual and we

extend our comfort to those who long for a child but are

unable to have one. In short, the love, companionship,

affection and joy which a child brings is thought to so

outweigh the burdens that we bridle at the thought that the

law could be so foolish as to regard this as a compensable

loss.

[para62] In Ontario, public policy recognizes the inherent



value of children. The loss of a child's "guidance, care and

companionship" is compensable by virtue of section 61(2)(e) of

the Family Law Act, R.S.O. 1990, c. F.3 and pecuniary and

non‑pecuniary losses are recoverable upon the wrongful death

of a child: Mason v. Peters (1982), 39 O.R. (2d) 27, 139

D.L.R. (3d) 104 (C.A.). How can it then be that the wrongful

birth of a child is a compensable loss? The answer to this,

in my view, does not lie in public policy. On the one hand,

public policy favours sensible family planning and does not

impose children on people contrary to their choice. On the

other hand, children are regarded undeniably by the state as

beneficial and it is the loss of a child, not the birth of a

child, which, in law, is a compensable wrong. Both views,

contrary though they may be, are supported not only by public

policy but also by public sentiment. Accordingly, it falls to

tort law to attempt to determine whether this is a compensable

loss. This requires a fuller understanding of the nature of

the loss and the legal principles which favour or militate

against compensation.

[para63] One of the difficulties in the kind of claim

which is here advanced is that it cuts not only at the

intersection of contract and tort but also at the intersection

of tort and damages. As observed by Professor Steven Waddams

in The Law of Damages, 2d ed. (Canada Law Book: Toronto,

1995) para 14.420:

[I]n torts ... it is impossible to draw a clear dividing

line between questions of liability and damages. This is

because the test of foreseeability is used in the law of

negligence to determine not only the extent of the

damages payable by the defendant but whether there is a

sufficient legal nexus between plaintiff and defendant in

the first place, whereas the legal nexus in a contract

case is determined by the existence of the contract

itself.


[para64] The claim advanced in this case is, in my view,

analogous to one of pure economic loss. While it is true that

the claim is framed as a foreseeable loss arising from

negligence, its essential character and purpose is to redress

injury to an economic interest. The economic costs of the

future care of a wrongfully injured plaintiff is a familiar

one in the law of damages where there is physical injury to

the plaintiff. However here, the care costs are claimed in

the absence of any injury to the child although they are

sought for her benefit. It is in this sense that I say that

the costs are analogous to pure economic losses. They do not

flow from an injury to the child. They arise as a result of

an 'injury' to her parents. I turn then to consider whether

the claim can be supported on the basis of negligence

principles.

[para65] It is trite law that the tortfeasor takes the

victim as she is and if a duty of care is owed and breached,

all reasonably foreseeable losses which are proximately caused

by and flow from the wrong are recoverable. Those courts

which have adopted the 'total recovery' approach have been

willing to trace the foreseeability doctrine down an endless

path. Compensation for child‑rearing costs is seen as the

inevitable result of the rigorous and logical application of

the tort principle that the tortfeasor bear responsibility for

all of the costs which have been visited on the plaintiff by

the wrong. The 'total recovery' approach depends then on the

strict application of the foreseeability doctrine without

regard to whether or not the 'injury', in this case, the birth

of a healthy child, bears any relationship to the wrongdoing

or to the legally protected interest. It assumes,

counterintuitively, that the birth of a healthy child can

constitute an injury. It seems to me that this approach, when

applied strictly to wrongful pregnancy cases, is flawed. It

confounds the principles of tort recovery with the assessment

of damages. It also leads, in its quest for perfect

compensation, to the 'offset/benefits' approach which is

frankly unacceptable. Finally, it fails to answer the

troubling mitigation issues which arise in this kind of case.

[para66] In this case, the facts are that the Kealeys have

a combined family income of about $100,000. The sterilization

was sought because Mrs. Kealey decided that "this body wasn't

having any more children". Terminating the pregnancy was not

considered as an option and the evidence is that "after the

initial shock" of discovering the pregnancy, both parents not

only accommodated to the idea, but welcomed it, even wondering

if their third child might be "their boy" to complete their

family. Mrs. Kealey reasonably expected not to be pregnant

again and, for that harm, she should be fully compensated.

But, on these facts, it is difficult to characterize the birth

of Ashley as an injury. As unplanned as her conception may

have been, the injury has been unexpectedly transformed into a

happiness which both she and her husband agree provides

priceless intangible joys. From the time they learned of

Ashley's impending birth, they have been willing and able to

assume all of the responsibilities of her rearing, financial

and otherwise.

[para67] Should any of this matter? If foreseeability is

the sole determinant of recovery, these facts should be

neutral. However, if the assessment of damages associated

with a child's birth is considered on the basis that damages

are awarded to compensate for an injury, not in the abstract,

but with reference to the purpose of the activity, in this

case, the sterilization, these facts may very well matter.

The proposition can be looked at in another way. It is not

enough that the plaintiff's injury was foreseeable in order to

give rise to this head of damage. The plaintiff's injury must

fall within the scope of the wrongdoing in the sense that the

risks created by the activity, negligently performed,

occasioned the consequences which flow from it. This

analysis, borrowed from a consideration of a different issue,

namely, the limitations on recovery for negligent

misstatement, asks the question: Despite foreseeability, are

these the kind of damages for which the defendant physician

can be held liable?...


[para70] Although courts which have considered wrongful

pregnancy cases have purported to follow ordinary principles

of negligence law to allow recovery, a closer analysis of the

cases suggests that, foreseeable or not, damages are by and

large awarded when the plaintiff is within the ambit of the

defendant's wrongdoing. By this I mean that the consequences

of the failed sterilization causes an actual impairment to the

interest which the sterilization sought to protect. In my

view, this is evident from each of the seminal wrongful

pregnancy cases resulting in the birth of a healthy child in

the United States, England and Canada.

...


[para76] Although frequently cloaked in the language of

foreseeability, these cases suggest to me that an award for

child‑rearing costs very much depends on a court finding that

the birth of a healthy child in fact constitutes a harm,

frequently because the sterilization is sought for economic

reasons, and its failure imposes an economic burden on the

plaintiffs which a court is prepared to redress.

...


[para80] It would be tempting in a case such as this to

simply pronounce, as the Court did in Cockrum, that, as a

matter of sound judgment, these kinds of costs should not be

recoverable even if the strict application of tort principles

might lead one to permit recovery. As stated in Cockrum at 95

Ill.2d at 201, 447 N.E.2d at 390:

We cannot on balance accept the plaintiffs' contention

too that we should rigidly and unemotionally, as they put

it, apply the tort concept that a tortfeasor should be

liable for all of the costs he has brought upon the

plaintiffs. It has been perceptively observed, by

distinguished authority, that the life of the law is not

logic but experience. Reasonableness is an indispensable

quality in the administration of justice.

[para81] I agree with the Court in Cockrum that the strict

application of tort principles to wrongful pregnancy cases is

problematic. However, equally problematic is the approach

which permits recovery subject to offsetting the benefits of

the child. This approach raises the unpalatable prospect that

the "beneficial" child could completely offset the damages

awarded to his or her parents thereby negating the award. The

greater recovery would go to parents who not only did not want

their children but who were lacking in affection for the child

and able to demonstrate that the child was of no value. That

this cannot be right must be evident.

[para82] No one would disagree that the responsibilities

of rearing a child entail burdens, financial and otherwise.

But, successfully meeting those responsibilities also brings

innumerable benefits in the form of personal satisfaction and

happiness. The responsibilities and the rewards are

inextricably bound together and do not neatly balance one

against the other, at least not in the case of children. Who

can say whether the time, toil and trouble, or the love,

guidance and money which parents devote to a child's care and

upbringing, will bring rewards, tangible or intangible,

to‑day, to‑morrow or ever. No court can possibly determine

this in any sensible way. Nor should it attempt to do so. If

damages are awarded for child‑rearing costs, it is my view

that the correct approach is as suggested in Thake v. Maurice.

The responsibilities and the rewards cancel each other out.

[para83] If neither the application of strict tort

principles (with or without the offset for benefits) nor

public policy illuminates the principles on which

child‑rearing costs are recoverable, some other basis must be

found. In an article which considered the Ontario case Doiron

v. Orr, J.E. Bickenbach, "Damages for Wrongful Conception:

Doiron v. Orr" (1979‑80) 17 U.W.O.L. Rev. 493, the author

suggests that the birth of a child is not properly analyzed as

a benefit but that the legal significance of a child's birth

is that it creates responsibilities. There is support for

this view in law, in public policy, and as a matter of common

sense.


[para84] From the moment of birth, parents and children

have mutual obligations to care for and support one another.

Parents have a legal duty to provide the "necessaries of life"

to their children failing which they are subject to criminal

sanctions. Criminal Code, R.S.C. 1985, c. C‑46, s. 215.

Every parent has an obligation to provide support to a child,

in accordance with need, during the period of dependency.

Family Law Act, s. 31. Children have a corresponding

obligation to support their parents if able to do so. Family

Law Act, s. 32; see Bolsco v. Godwin (1993), 45 R.F.L. (3d)

310 (Ont. Prov. Div.), aff'd (1995), 16 R.F.L. (4th), 419

(C.A.). If public policy must be invoked, these statutory

provisions suggest to me that, as a matter of public policy,

the financial responsibilities associated with the care and

upbringing of a child are the responsibilities of parents. In

a wrongful pregnancy case, the question then becomes to what

extent, if at all, the defendant's negligence impairs the

plaintiff's ability to meet those responsibilities to the

unplanned child or compromises the relationship of mutual

support and dependency between parent and child. It is for

this reason, as Professor Bickenbach suggests, that in

wrongful pregnancy cases, it is the court's function to find

the interest which a successful sterilization would have

protected in order to determine whether the consequences of

the failed sterilization constitute a genuine injury or a

"blessed event". The reasons for the sterilization are

relevant to this determination.

[para85] This approach makes sense if one considers that

the general principle of compensatory damages is restitutio in

integrum. "In each case the task of the Court is to determine

as nearly as possible the plaintiff's actual loss, but the

plaintiff is not entitled to turn an injury into a windfall":

Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 962. It also makes

sense if one accepts that the underlying rationale for the

award of child‑rearing costs in many of the "total recovery"

cases is to ensure that the plaintiffs can meet their

financial responsibilities to the child. This is the harm

which the Courts in Custodio, Thake, Cataford and the other

cases to which I have referred were seeking to redress.

Finally, it makes sense if the injury is looked at through the

lens of the Caparo "limited purposes" rule for it has this in

common with it. In both, foreseeability is a necessary but an

insufficient determinant. In both, the Court is asked to

identify the interest harmed with reference to the purpose of

the activity. It is in this sense that there must be "a

unified conception of wrongdoing for which it makes sense as a

remedy that this plaintiff sue this defendant for this

injury". Caparo was concerned with liability but, if

foreseeability is the determinant of both liability and the

extent of the damages which a tortfeasor must bear, the

principle should apply equally.

[para86] What it comes down to is this. There is a cause

of action against a physician for negligently performing a

sterilization which results in an unplanned pregnancy. If a

child is born as a result of that pregnancy, this does not, in

itself, constitute a harm which inevitably leads to damages

for child‑rearing costs:

[T]he duty of care is inseparable from the damage which

the plaintiff claims to have suffered from the breach.

It is not a duty to take care in the abstract but a duty

to avoid causing in the particular plaintiff damage of

the particular kind which he has in fact sustained." (per

Lord Oliver in Caparo at 1 All E.R. 599).

The particular damage sustained in this case is an unplanned

and undesired pregnancy. There is no damage caused by the

defendant's negligence which prevents Ashley's parents from

fulfilling their responsibilities to her or compromises in any

way the relationship of mutual support and dependency which,

as a matter of law, arose on her birth. Accordingly, the

child‑rearing costs in this case are not a compensable loss.

[para87] In coming to this conclusion, I do not deny that

the economic consequences of raising Ashley were a foreseeable

result of Dr. Berezowski's negligence. But, to accede to the

plaintiffs' argument that I should strictly apply tort

principles means that I must also consider mitigation. The

reasons for the sterilization were personal as a matter of

family planning. The reasons for continuing the pregnancy and

raising Ashley in the Kealey family were a matter of personal

choice. Mrs. Kealey testified that, upon learning of her

pregnancy, she made an immediate decision to continue the

pregnancy. Mr. Kealey subsequently concurred in that

decision. Neither abortion nor adoption "was an option". I

accept that this was their decision to make and that a court

should not ordinarily inquire into the reasons which informed

these very personal choices. However, when parents ask a

court to be relieved of the consequences of those choices, I

think it is appropriate for a court to ask whether it was

reasonable in the circumstances to have made those choices.

If the answer is only that notwithstanding these choices, they

have suffered a foreseeable loss, it is my view that this is

an insufficient reason to impose the responsibilities which

are at issue here on the tortfeasor.

[para88] Life is about choices and not everything in life

is predictable or planned. To transform a mistake, measured

in millimeters, into a monetary award in this case, cannot be

right. Nor, in my view, can every mistake be evaluated by

rules designed for different reasons. The Kealeys are willing

and able to assume and have assumed their responsibilities as

parents to their third daughter as they should. Ashley is

ensured a happy and successful childhood in a family which has

welcomed her, loves her and can afford to raise her. The

responsibilities should remain where they are.

[para89] I wish to make clear that the result in this case

does not finally determine whether, in all cases, damages for

child‑rearing costs are or are not recoverable. This is not a

case where a sterilization was sought to protect a mother's

health and the mother became ill, impairing her ability to

care for the child. Nor is it a case where a sterilization

was sought to avoid the transmission of a hereditary condition

and the child was born diseased. This is not a case of

economic necessity, imposing unreasonable financial burdens on

an impoverished family. Nor is it a case like Emeh, where a

physician's failure to diagnose a pregnancy following a failed

sterilization interfered with a woman's decision to terminate

the pregnancy in a timely manner. While the analysis here may

be of assistance in deciding those other cases, the assessment

of damages in those cases is better left to that time. This

is a novel and developing area of law in Canada and in

Ontario. Tort law proceeds incrementally. I do not go so far

as to say that each case must be decided entirely on its own

facts. Nevertheless, I think that general principles for the

award of damages for child‑rearing costs should evolve as

cases present themselves. I appreciate that this provides

less certainty and predictability than may be desirable but it

does permit the development of sound rules appropriate to the

varied circumstances which can arise in wrongful pregnancy

cases.

Assessment of Damages



General Damages

[para90] As a result of the failed sterilization,

Kimberley Kealey was pregnant for a third time and is entitled

to the damages which flow from the pregnancy, labour and

delivery as well as the necessity to undergo a second tubal

ligation. The round ligament strain which Mrs. Kealey

experienced from May 1992 to September 1992 was a source of

some discomfort but resolved on Ashley's birth. Otherwise,

Mrs. Kealey's pregnancy was free of complications and Ashley

was born following a three hour labour and delivery. As a

result of the re‑sterilization, which was performed as day

surgery under a general anesthetic, Mrs. Kealey is left with

four rather than two small scars on her abdomen, each

approximately 3/8 inch in diameter which are gradually fading.

...

[para96] Having regard to the unplanned pregnancy



exacerbated by the round ligament strain, the stress and

difficulty of caring for two young children and working

full‑time during this pregnancy, the labour and delivery, and

the re‑sterilization, all necessitated by the defendant's

negligence, I award general damages of $30,000.

Loss of Income

Kimberley Kealey

[para97] Kimberley Kealey lost income in the amount of

$6,945.53 net of payments received from U.I.C. and from her

employer for maternity benefits. This was the claim advanced

and was not challenged. However, the claim for sick days

taken during pregnancy and for lost overtime, lost vacation

coverage and lost shift coverage was not adequately proved and

I make no award here.

Kevin Kealey

[para98] Following Ashley's birth, Kevin Kealey chose to

take a voluntary seven‑week parental leave available through

his employer. Net of U.I.C., Mr. Kealey lost income of

$4,926.00. Mr. Kealey's claim was resisted by the defendant

on the authority of Arndt v. Smith. While Mr. Kealey has no

independent claim against the defendant, Arndt v. Smith

establishes that the father has a derivative claim which flows

from the mother's loss. Freeman v. Sutter, [1996] 4 W.W.R.

748 (Man. C.A.) is clearly distinguishable as, in that case,

there was no claim by either the mother or child and therefore

no derivative claim of the father was available.

[para99] It was argued by the defendant that, as Mr.

Kealey's parental leave was a matter of choice, I should not

allow it. Mr. Kealey conceded that it would have been cheaper

for him and his wife to hire a baby‑sitter. In my view,

parental leaves are consistent with current views of the

shared role of parents in the rearing of children and should

be encouraged. I therefore allow Mr. Kealey's loss of income

claim.


...

Special Damages

[para111] Special damages for the 'start‑up' baby costs

have been agreed to in the amount of $1222.50. In view of the

conclusion I have reached with respect to child‑rearing costs,

there is no logical reason why these costs should be allowed.

However, as they have been agreed to, I include them in the

assessment. The claim for the purchase of a van to

accommodate the larger family was abandoned in argument and I

do not propose to deal with it.

Conclusions on Damages

[para112] The damages I award are as follows:

Kimberley Kealey: General Damages $30,000.00

Loss of Income $ 6,945.53

Total $36,945.53

Kevin Kealey Loss of Income $ 4,926.00

Agreed Special

Damages $ 1222.50

Total $40,094.03

[para113] The plaintiffs will have judgment in this amount

together with pre‑judgment interest at the applicable rate,

which I am advised is 7%. If costs are not agreed, I may be



spoken to.

LAX J.


Share with your friends:




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page