Establishing causation of an injury can be a difficult task. The courts traditionally apply what has come to be known as the “but for” test: causation is established if the injury would not have occurred but for the event in question. The problem can be especially difficult in cases of psychiatric injury, in sorting out the specific cause of emotional damage. The Court of Appeal for Ontario was faced with such circumstances in the recent decision of Frazer v. Haukioja, 2010 ONCA 249. Mr. Frazer attended at the emergency room following a motorcycle accident complaining of pain in his right and left ankles. He was examined by Dr. Haukioja, who diagnosed a left ankle fracture. He advised Mr. Frazer that the right ankle was fine and the pain was part of the healing process. When later x-rays disclosed that Mr. Frazer had suffered a talus fracture of the right ankle, Dr. Haukioja failed to advise Mr. Frazer of the results. When Mr. Frazer discovered this at an appointment with another physician, he began suffering serious psychiatric problems as a result of his belief that he had been mistreated and lied to by Dr. Haukioja. The resulting trial resulted in a substantial judgment for damages. The issue before the Court of Appeal was whether Mr. Frazer had properly satisfied the test for causation.
As the trial judge perceived it, the evidence of Dr. Sadavoy is vital in determining whether the ‘but for’ test has been met. Dr. Sadavoy listed three causative factors behind Mr. Frazer’s psychiatric injury:
- The difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja;
- Mr. Frazer’s belief that he was “medically mistreated” and “deliberately harmed”; and
- Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle.
The first cause identified by Dr. Sadavoy is the difference between the true severity of the talus fracture and Dr. Haukioja’s representations. Dr. Haukioja failed to communicate with Mr. Frazer at all between December 6, 2001 and January 10, 2002, leaving Mr. Frazer with the understanding that there was no right-ankle fracture. On January 10, 2002, Dr. Haukioja communicated in an inadequate fashion, leaving Mr. Frazer with the understanding that the fracture was tiny, barely visible and minor. It was not until January 23, 2002 that another doctor advised Mr. Frazer of the true nature of his injury.
The evidence clearly demonstrates that but for the non-disclosure, Grant Frazer would have known the true severity of his injury and this first factor would never have come into existence.
The second cause named by Dr. Sadavoy is Mr. Frazer’s belief that he was medically mistreated and deliberately harmed. Dr. Haukioja argues that there is a legal distinction between the non-disclosure and Mr. Frazer’s interpretation of the non-disclosure. Moreover, as the trial judge found there was no evidence to support a finding that Dr. Haukioja deliberately exposed Mr. Frazer to harm, it was not open to the trial judge to find factual causation. I do not agree with this submission. Despite the trial judge’s finding that Dr. Haukioja did not act deliberately, it is sufficient that Mr. Frazer would not have formed the belief that Dr. Haukioja was deliberately causing him harm if the non-disclosure had never happened. This is all that the “but for” test requires.
The third cause identified by Dr. Sadavoy is Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle. Mr. Frazer would not have experienced extra pain from weight-bearing, and thus formed the belief that he had exacerbated his injury, if Dr. Haukioja had disclosed the existence of the fracture on December 6, 2001. This is sufficient to meet the “but for” test.
The trial judge’s acceptance of Dr. Sadavoy’s evidence necessarily means that factual causation is made out on the “but for” test. The real issue in this case is whether legal causation has also been established. As I will explain, I hold that it has…
In the present case, the trial judge found at para. 227 of his reasons that, ‘[t]he psychiatric evidence establishes that the illness that Dr. Haukioja’s conduct brought about in Grant was foreseeable even if the extent of his disability was not.’ I read this as the trial judge’s following the test in Mustapha and finding that it was reasonably foreseeable that Dr. Haukioja’s conduct would cause a mental injury in a person of reasonable fortitude, even if the precise nature and extent of Mr. Frazer’s condition were not reasonably foreseeable. Thus, although the trial judge distinguished Mustapha on its facts, he actually applied the test established in that case, and did so correctly.