T-341-77
Jean-Guy Mérineau (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Quebec City, June
26; Ottawa, July 28, 1980.
Crown — Torts — Plaintiff was a member of the Canadian
Armed Forces — Action, pursuant to s. 3 of the Crown
Liability Act, for damages because of improper treatment at
the National Defence Medical Centre — Whether this Court is
competent to render a decision on the compensation sought by
this action — Whether plaintiff is within the conditions stated
in s. 12 of the Pension Act to receive a pension compensating
him for his disability — Crown Liability Act, R.S.C. 1970, c.
C-38, ss. 3, 4(1) — Pension Act, R.S.C. 1970, c. P-7, as
amended by R.S.C. 1970 (2nd Supp.), c. 22, ss. 12, 88.
This is an action for damages instituted by plaintiff pursuant
to section 3 of the Crown Liability Act. In 1976, plaintiff, then
a regular member of the Canadian Armed Forces, was admit
ted to the National Defence Medical Centre, a medical estab
lishment controlled by the defendant, to proceed with his
convalescence after undergoing a coronary by-pass operation.
Upon his arrival, he was given a blood transfusion with the
wrong blood type. He now suffers a permanent disability. The
question is whether this Court is competent to render a decision
on the compensation sought by the action. Defendant argues
that plaintiff is within the conditions stated in section 12 of the
Pension Act to receive a pension compensating him for his
disability, and hence that the action is inadmissible before this
Court. Plaintiff submits that this argument is res judicata since
the Court of Appeal had finally disposed of it in a judgment
quashing the Trial Division's decision allowing a motion to
dismiss the statement of claim made at the outset of the
proceedings pursuant to Rule 419 of this Court. Furthermore,
plaintiff ;disputes defendant's argument on the merits stating
(1) that 'he was cared for with his consent and not as the result
of an order by his superiors and (2) the transfusion and the
resulting disability were not connected with his military service,
as they were not caused by his military activities.
Held, the action is dismissed. With respect to the argument
of res judicata, the judgment of the Court of Appeal does not
have the scope attributed to it by plaintiff. Its judgment cannot
be interpreted as meaning more than a simple affirmation that
it cannot be said, merely from reading the statement of claim
as it was presented, that there was no valid cause of action.
Defendant's argument with respect to section 12, which rested
on factual data not yet completely clarified, required no firm
position to be taken, since allowing it did not mean that the
action would immediately be dismissed. With respect to plain
tiffs second argument, an order from a superior officer is not
necessary to make the activity of a member of the Armed
Forces military activity, and the medical treatment of a soldier
cannot be dissociated from his status as a soldier. Section 12
cannot be given the narrow interpretation that plaintiff sub
mits. Plaintiff is entitled to a pension for the disability suffered
as a result of the medical treatment administered to him while
he was in military service, by others in military service and in a
military establishment. It follows that his action brought in this
Court pursuant to the Crown Liability Act, is inadmissible.
ACTION.
COUNSEL:
P. Morin for plaintiff.
J. M. Aubry and J. Mabbutt for defendant.
SOLICITORS:
Vézina, Pouliot, L'Ecuyer & Morin, Ste. Foy,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: This action is for damages, pursu
ant to section 3 of the Crown Liability Act (R.S.C.
1970, c. C-38). The parties have arrived at an
agreement as to certain of the basic facts underly
ing the action; the gist of the matter is related as
follows:
[TRANSLATION] 1. At all relevant times, and in particular
when the facts described in paragraphs 1, 2, 3 and 4 of the
statement of claim occurred, plaintiff was a soldier, a regular
and duly enrolled member of the Canadian Armed Forces
within the meaning of the National Defence Act;
2. On or about February 8, 1976 plaintiff was transferred and
admitted to the National Defence Medical Centre, a medical
establishment controlled and administered by defendant, to
proceed with his convalescence after undergoing a coronary
by-pass operation;
3. When he arrived at the National Defence Medical Centre
under the care of nurses, technicians and doctors, all of whom
are servants of defendant, he was given a blood transfusion with
the wrong blood type;
4. Plaintiff was transferred, admitted and treated at the Na
tional Defence Medical Centre on the recommendation of his
attending physician, Lieutenant-Colonel Gilbert Bérubé;
Those are the essential facts, but of course they
must be placed in their context. Plaintiff joined the
Canadian Armed Forces in April 1954, when he
was 25 years old. In March 1972, while on active
service in Montreal, he suffered a severe cardiac
infarction. When he recovered, he was assigned to
work as an administrative clerk in the military
hospital at Valcartier, Quebec, where the medical
care which his condition undoubtedly required
would be more readily available. On October 3,
1973 he for the first time saw Lieutenant-Colonel
Bérubé, a specialist in internal medicine attached
to the Valcartier military hospital, who was to
become his attending physician, and who on this
first visit gave special attention to establishing his
medical condition and giving him an appropriate
"category" under the medical military regulations.
He saw Dr. Bérubé again in April 1974, complain
ing of general weakness, palpitations, and pains in
his arms. He had to be hospitalized and remain
convalescing for some time, but was eventually
able to resume his activities at a moderate pace.
However, at the end of the summer the signs and
symptoms of coronary insufficiency reappeared.
Dr. Bérubé again put him in hospital and then
referred him for consultation to the Quebec City
Cardiology Institute, and later on October 2, 1974
felt it advisable to send him to the National
Defence Medical Centre in Ottawa. It appeared to
the doctors at the Centre that a coronary by-pass
operation would be necessary: this was performed
at the Ottawa Civic Hospital the following
November 26. On November 4, 1975 an investiga
tion at the National Defence Medical Centre
revealed obstructions in the by-passes, but as the
patient's clinical condition was relatively good it
was decided not to undertake a second operation
immediately. However, in January 1976 Dr.
Bérubé, finding that his patient's cardiac condition
was deteriorating, sent him back to Ottawa
urgently. A second operation was performed, again
at the Ottawa Civic Hospital. It was two days
after the second operation, when he had been
returned to the National Defence Medical Centre
for his post-operative convalescence, that plaintiff
received the incorrect blood transfusion mentioned
above.
The transfusion gave plaintiff a shock which had
serious consequences. He has never recovered and
the doctors agree that he never will. He at present
suffers a permanent disability, set at 80%, which
derives: in part from a group of physiological and
physical weaknesses, most related to some extent
to his earlier condition, but aggravated to an
abnormal degree by the "transfusional" shock, but
in particular from psychological problems, causing
nervousness, anguish and anxiety. For all practical
purposes, plaintiff will never be in a condition to
resume his responsibilities or to make any contin
uous effort: so far as work is concerned, he has
become totally disabled.
These are the facts, which as such are not in
dispute. There can further be no dispute that, in
view of these facts, plaintiff is entitled to be com
pensated for the injury which he suffered as a
result of this unfortunate medical error. However,
a problem arises as to who will pay this compensa
tion and how it is to be paid. Is this Court com
petent to hand down a decision on the compensa
tion sought by the action? This is the first question
that must be answered, and unfortunately I believe
it must be answered in the negative.
As I said, this action is based on section 3 of the
Crown Liability Act, which makes the Queen
liable for the acts of her servants as if she were a
private person of full age. However, the scope of
this provision is limited by that of section 4(1) of
the same Act and of section 88 of the Pension Act
(R.S.C. 1970, c. P-7, as amended by R.S.C. 1970
(2nd Supp.), c. 22), which provide as follows:
4. (1) No proceedings lie against the Crown or a servant of
the Crown in respect of a claim if a pension or compensation
has been paid or is payable out of the Consolidated Revenue
Fund or out of any funds administered by an agency of the
Crown in respect of the death, injury, damage or loss in respect
of which the claim is made.
88. No action or other proceeding lies against Her Majesty
or against any officer, servant or agent of Her Majesty in
respect of any injury or disease or aggravation thereof resulting
in disability or death in any case where a pension is or may be
awarded under this or any other Act in respect of such disabili
ty or death.
It is accordingly clear from reading these provi
sions that if plaintiff is entitled to be awarded a
pension to compensate for the disability which he
sustained as a result of the actions of the military
employees of Her Majesty, his action in this Court
is inadmissible: he may only claim the pension to
which he is entitled. Section 12 of the said Pension
Act sets forth the cases in which a pension will be
payable under the Act, and subsection (2) reads as
follows:
12. ...
(2) In respect of military service rendered in the non-perma
nent active militia or in the reserve army during World War II
and in respect of military service in peace time, pension shall be
awarded to or in respect of members of the forces who have
suffered disability, in accordance with the rates set out in
Schedule A, and in respect of members of the forces who have
died, in accordance with the rates set out in Schedule B, when
the injury or disease or aggravation thereof resulting in disabili
ty or death in respect of which the application for pension is
made arose out of or was directly connected with such military
service.
Defendant argued that plaintiff is well within
the conditions stated in section 12 to receive a
pension compensating him for his disability. She
thus returned to the argument which was the basis
for a motion to dismiss the statement of claim
made at the outset of the proceedings, pursuant to
Rule 419 of the Rules of this Court. Plaintiff of
course disputed this view.
Plaintiff maintained, first, that defendant's
argument could not be raised again, since the
Court of Appeal had finally disposed of it by a
judgment dated December 2, 1977, which now has
the force of res judicata, quashing the decision
(which I myself rendered) allowing the motion to
dismiss. However, I consider that the judgment of
the Court of Appeal does not have the scope
attributed to it by plaintiff. A motion under Rule
419 rests on the contention that, on its face and as
worded, the statement of claim discloses no
reasonable cause of action. It was such a motion
which the Court of Appeal dismissed, and its
decision given without further reasons cannot be
interpreted as meaning more than a simple affir
mation that it cannot be said, merely from reading
the statement of claim as it was presented, that
there was no valid cause of action. In fact, plaintiff
did not at that time state in a formal allegation in
his statement of claim that he was a member of
the Armed Forces at the time the act complained
of occurred. Defendant's argument, which rested
on factual data not yet completely clarified,
required no firm position to be taken, since allow
ing it did not mean that the action would immedi
ately be dismissed. That is not the case now, since
we know that plaintiff was in fact a member of the
Armed Forces, and was treated at the National
Defence Medical Centre in Ottawa as such.
Plaintiff did not limit himself to the argument of
res judicata. He disputed defendant's argument on
the merits, namely that he did not fall within the
conditions specified in section 12 for him to claim
a pension, first, because he was hospitalized, oper
ated on and cared for with his consent and not as
the result of an order by his superiors, and second,
because the act of which he was the victim and the
resulting disability were not connected with his
military service, as they were not caused by his
military activities. I do not share plaintiff's point
of view. First, I do not see why an order from a
superior officer is necessary to make the activity of
a member of the Armed Forces military activity,
and I further do not accept that the medical
treatment of a soldier can be dissociated from his
status as a soldier. My observations made in this
connection in my decision on the application to
dismiss at the outset seem to be still applicable:
[TRANSLATION] Under the National Defence Act (R.S.C.
1970, c. N-4), military service is continuous and total and a
soldier is at all times subject to the orders and instructions of
his superiors. Plaintiff was moved to the National Defence
Medical Centre and admitted on the instructions of his supe
riors, and the treatment he underwent was prescribed and
administered at the request of his superiors. He was treated as
a member of the military, by others in the military, in a
military facility. I think it is clear that the acts which he
complains of were committed in connection with his military
service and that the resulting disability on which his claim is
based "arose out of or was directly connected with such mili
tary service".
Plaintiff has good reason here for defending an
interpretation of section 12 which considerably
limits its scope. However, if his argument were to
be accepted, it would be fraught with conse
quences for members of the military who became
disabled and who did not have, as he did, an
opportunity to link their disability to a medical
error. I do not think that section 12 can be inter
preted so narrowly. In my opinion, plaintiff is
entitled to a pension for the disability suffered as a
result of the medical treatment administered to
him while he was in military service, by others in
military service and in a military establishment. I
consider that it necessarily follows that his action
in this Court, brought pursuant to the Crown
Liability Act, is inadmissible.
However, I think it is proper for me in these
reasons for judgment not to limit myself solely to
this finding, decisive as it is. My reasoning may be
overturned on appeal and the action as brought
would then have to be considered and decided on
its merits. Accordingly, so as to avoid unnecessari
ly lengthy proceedings I will say at once how I
would dispose of the action if I had authority to do
so.
As fault is admitted and there is no question as
to the master and servant relationship between
those committing the fault and defendant, the
problem appears to be to identify the damages
relating directly to the fault and to establish their
quantum.
Plaintiff claimed under five different headings. I
would affirm the agreement reached between the
parties with respect to two of these, the costs of
transportation and expert advice ($2,000), and the
loss of salary as a result of having to leave the
Armed Forces prematurely ($28,975). With
respect to two others which, moreover, are to some
extent inter-connected, since they relate to pain,
suffering and hardship on the one hand and loss of
enjoyment of life on the other, there can only be a
purely subjective assessment, the idea being to
provide a measure of compensation and not to
undertake monetary measurement, and on the
basis of current decisions I would allow half the
amounts claimed, namely $20,000.
On the other hand, with regard to damages
resulting from the partial permanent disability, the
fifth heading set forth in the statement of claim,
the difficulties of arriving at an assessment appear
to be great. Plaintiff based his claim here on his
loss of earnings. He argued that on leaving the
army he would have been able to find work as an
administrative clerk, in view of his knowledge and
experience, and he would have been able to work
as such until he retired at age 65. He accordingly
called an actuary to present evidence of certain
figures relating to salary which he could thus have
earned, and of the capital sum capable of replacing
the salary allegedly lost as a result of disability. In
this way, he arrived at a claim of $255,000. How
ever, plaintiff should not forget that before the
unfortunate accident of which he was a victim he
already suffered from a disability which the doc
tors placed at 40% at least, and that his cardiac
condition already considerably limited his opportu
nity for employment, since he could only do light
work, and even possibly, according to his own
expert witness, on a part-time basis. He should
also remember that his physical disorders and even
his anxiety neurosis, from which his present dis
ability primarily results, all derive from his earlier
cardiac condition, and cannot be related exclusive
ly to the fault of which he was a victim. Finally, it
should not be forgotten that his life expectancy
had already for some time been less favourable
than someone in excellent health.
It is clear that in view of all the uncertainties
and imponderables involved, it is not possible to
employ mathematical means in order to express in
money terms the consequences of the partial per
manent disability suffered by plaintiff. An approx
imate figure must therefore be determined. Based
on certain of the data provided by the actuary,
especially those relating to the salary of an
administrative technician, I feel that an amount of
$70,000 would be fair and reasonable and that is
what I would adopt.
Accordingly, if I regarded the action as admis
sible, I would uphold it for the sum of $120,975.
Unfortunately, for the reasons stated above, I do
not feel that I have jurisdiction to dispose of this
action, as it was based on the Crown Liability Act.
I therefore have no choice and must dismiss it.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.