Tag: Sivertson (Guardian ad litem of) v. Dutrisac

BC Government Shielded From Liability in "Shaken Baby" Lawsuit

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, discussing when a government authority can be pursued for damages for the negligent excercise of their powers.
In last week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the infant Plaintiff was brain injured allegedly “while in the care of…a licensed daycare ‘Kare Bare Child Care’ “.  The Plaintiff sued various Defendants including the Capital Health Region “CHR” who were responsible for licensing the Daycare in question.
The CHR brought an application to dismiss the lawsuit against them arguing that even if they inadequately exercised their duties the lawsuit could not succeed because the CHR did not owe the Plaintiff a ‘private law duty of care‘.  Madam Justice Boyd agreed and dismissed the lawsuit against the CHR.  In doing so the Court provided the following reasons:
[51] The overall statutory scheme governing the licensing of daycare facilities provides an efficient framework to ensure the operation of community care facilities “in a manner that will maintain the spirit, dignity and individuality of the person being cared for “(s. 4(1)(a)(i)). …

[57] As in the Cooper decision, the CHR and its inspectors must balance a myriad of competing interests when dealing with the licensing and inspection of daycares, including the daycare owner’s interest in the continued operation of her business and the parents’ and the public’s interest in the protection of children in the care of the daycare owner.

[58] In my view, this balancing of interests is inconsistent with the imposition of a private duty of care.  Thus, on a review of all of the authorities, and a consideration of the legislation in issue, I reject the notion that any private law duty of care was owed by the CHR (and its employees) to the infant plaintiff and his family.

[59] If however I am in error, and it is found that such a private duty of law does arise in the circumstances of this case, then I nevertheless find that the application of the second stage of theAnns test yields no different result.  As the Ontario Court of Appeal held in Williams v. Canada (Attorney General), 2009 ONCA 378, at para. 17, at the second stage :

…the court considers whether there are “residual policy considerations” that militate against recognizing a novel duty of care.  …These are policy considerations that “are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”.

[60] In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case.  This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests.  The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy.  His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public.  As the Court held in Edwards, there is no indication here that the Legislature intended that result.  Indeed the statutory immunity from liability provision suggests the contrary.

Jury Notice Struck in Complex "Shaken Baby" Case


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, striking a Jury Notice in a complex “shaken baby” case.
In this week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the Plaintiff claimed 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… 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.”
The Defendants brought an application pursuant to Rule 12-6(5) to strike the Plaintiff’s Jury Notice.  Madam Justice Boyd agreed that the case was not appropriate for a Jury to preside over and granted the application.  In doing so the Court provided the following reasons:

[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.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer