Ontario Appeal Court refines concept of damages “too remote” for recovery

The Ontario Court of Appeal has refined the concept of “damages too remote for recovery,” recently distinguishing the fact situation in Frazer v. Haukioja from that of the Supreme Court of Canada case, Mustapha v. Culligan of Canada Ltd.
In Frazer, the Ontario Court of Appeal noted Grant Frazer was injured in a motorcycle accident on Nov. 25, 2001.
Frazer was taken to the emergency room at Northumberland Hospital, where Dr. Haukioja was the attending physician.
Haukioja diagnosed a left-ankle fracture and a right-ankle soft tissue injury. A cast was placed on Frazer’s left ankle only.
On Dec. 6, 2001, a radiologist examined Frazer’s x-rays and immediately noticed a talar fracture in Frazer’s right ankle.
Haukioja discussed the results with the radiologist that day, but Haukioja made no effort to communicate the x-ray result with Frazer until a follow-up appointment six weeks later. Even then, Haukioja characterized the fracture as tiny, barely visible and not requiring treatment. He suggested Frazer’s continuing pain was attributable to soft-tissue damage.
On Jan. 23, 2002, Frazer met with another doctor, who advised Frazer of the seriousness of the injury and the potential complications. Frazer learned that his complications could include arthritis, avascular necrosis (death of the bone as a result of an interruption of the blood supply) and the possibility that he might need surgery to fuse a joint in his ankle.
When Frazer realized the full extent of his injuries, he became focused on the fact that Dr. Haukioja had lied to him. Frazer saw a psychiatrist, Dr. Joel Sadavoy, who found that Frazer suffered from an anxiety disorder with features of panic disorder.
A trial judge found Frazer’s psychiatric diagnosis was totally as a result of Dr. Haukioja’s failure to properly treat his patient. Frazer received damages of $2,500 for non-disclosure, $150,000 for psychiatric injury, $283,378 for lost income, $1.2 million for future lost income and $14,911 for future care.
The doctor appealed the damage award against him. Along the lines of Mustapha, he argued he could not possibly have “reasonably foreseen” that his failure to notify his patient about the fracture earlier would have led to a psychiatric disorder.
In Mustapha, the plaintiff argued the discovery of a fly contained in his bottle water ultimately led to a psychiatric disorder. But the Supreme Court said the plaintiff’s severe psychiatric condition was “too remote” from his initial discovery of the fly in the water bottle to allow recovery for his damages.
The Ontario Court of Appeal noted a commercial relationship existed between a consumer and a company in Mustapha. But in Frazer the relationship was different, the court argued: it was based on a relationship of trust between a doctor and his or her patient.
“Mere ‘general emotional upset’ and compensable psychological injury fall along a spectrum that is difficult to navigate with any degree of precision,” the Ontario Appeal Court found. “The former is unquestionably foreseeable in this case. However, it seems to me that it was also foreseeable that Dr. Haukioja’s non-disclosure could give rise to a recognized psychiatric illness. Dr. Haukioja was an experienced doctor and Grant Frazer was his patient.”