Indexed As:

Shipman et al. v. Antoniadis et al.

[1975] O.J. No. 2310
Also reported at:
(1975), 8 O.R. (2d) 449

Ontario Court of Appeal
Kelly, Dubin and Howland, JJ.A.

April 3, 1975

Robert S. Montgomery, Q.C., for appellants.
Paul R. Jewell, Q.C., for respondents.

The judgment of the Court was delivered by

1. KELLY, J.A.:- This appeal is from an assessment of damages for personal injuries suffered by the infant plaintiff (Barbara), the parties having agreed upon the apportionment of negligence as between the defendants and Barbara.



2. Counsel for the defendants submitted that the trial Judge erred in allowing to be entered ex. 6, the inflammatory effect of which outweighed its probative value. Exhibit 6 was a vividly coloured chart drawn to depict the human trunk laid open to disclose its internal organs. It appears to be material which would be a teaching aid for medical students -- various colours, not the exact reproduction of natural colours, appear on it to distinguish organs or systems sought to be depicted.



3. This exhibit was identified by Dr. Simpson, a surgeon and one of the medical witnesses testifying at trial, and was used, as well as to indicate the location of the liver, spleen and gall bladder, principally to illustrate the operative techniques he had employed in his surgical repair of the internal injuries suffered by Barbara. Its use was quite unnecessary for the understanding of the continuing permanent disabilities which form the most substantial part of the damages claimed by Barbara. It was introduced at trial over the objection of counsel for the defendants. Its probative value was negligible and in the light of the amount at which damages were assessed by the jury may well have had the effect of aggravating in the jury's mind the extent of the compensable damages suffered by Barbara.



4. One may easily envisage injuries where, for the proper understanding of the disabling effect thereof, a jury might properly be asked to look at an anatomical diagram. One example of such a situation would be where limitation of movement of a hand was claimed to have resulted from injuries to muscles or tendons in the arm. A diagram showing the relationship of the injured tissue to the malfunction of the hand would be helpful to the jury in its understanding of a situation which did exist and might or would continue to exist. There the expert witness would properly be required to deal with that condition and its prognosis and could help the members of the jury by directing their attention to a drawing with reference to which they could better understand the condition. Another such example would be that of the malpractice action in which proof of the cause of action might require demonstration of the area which the treatment affected and wherein the negligence had occurred.



5. But a detailed descripton of the operative repair techniques employed by the surgeon is not related to the existence of continuing or permanent impairment and diagrammatic material, however useful to one who would be interested in assessing the operative technique, was not significantly useful to an appreciation of the continuing or permanent impairment resulting from the removal of Barbara's spleen, gall bladder and one-half of her liver. To countenance the description of the operation performed by the surgeon and the use of the exhibit to illustrate that part of the surgeon's testimony would be but one step removed from permitting to be shown before the jury coloured moving pictures taken in the operating theatre during the course of the operation.



6. While it is impossible to state with certainty whether the use of ex. 6 and the testimony as to the operative technique related to the chart alone were responsible for what appears to have been an unreasonable result, they could hardly be dissociated therefrom.



7. The dangers of the inflammatory effect on a jury would so far outweigh the possible value of the evidence as probative of compensable damage that Courts should be loath to run the risk of impairing the integrity of the trial by allowing the introduction of such evidence and the use of exhibits for purposes not more closely related to the proof of the essential issues the trial Judge is called upon to leave to the jury.



8. In turning to consider the submission of counsel that the judgment was so excessive as to warrant the interference of this Court, it must be borne in mind that, in this action for personal injuries occasioned by the operation of a motor vehicle, counsel had agreed at the opening of the trial to an apportionment of negligence at two-thirds against the defendants and one-third against Barbara.



9. The jury assessed the special damages of the adult plaintiff at $5,459.27, the amount agreed upon by counsel, and the general damages of Barbara at $200,000. They also assessed general damages of the adult plaintiff at $5,000 although no claim for any such damages had been made and the instruction of the trial Judge had left to them only the special damages of the father and the general damages of Barbara.



10. The amount of general damages claimed by Barbara in her statement of claim was $100,000. The trial Judge refused the application of the plaintiffs' counsel for leave to amend the statement of claim to meet the award of the jury; accordingly, judgment in favour of Barbara was entered in the sum of $100,000.



11. Barbara was six years and 10 months old at the time she was injured when struck down by a motor vehicle.



12. The injuries suffered by Barbara were extremely severe; it was ultimately found that upon admission to the Sick Children's Hospital at Toronto Barbara had suffered, in addition to abrasions over her face, arms and legs:
    
    
    
    1. a cerebral contusion, commonly defined as concussion;
    
    
    2. a torn tongue which required stitching;
    
    
    3. a laceration to the right side of her jaw which left a flat scar one centimetre in length and .7 centimetres in width;
    
    
    4. two lacerations to her right elbow which left scars each a centimetre in length;
    
    
    5. a fracture of the right iliac bone above the hip joint;
    
    
    6. an explosion type injury to her liver requiring the removal of approximately one half of that organ;
    
    
    7. a lesion to her gall bladder requiring its removal;
    
    
    8. a tear injury to her spleen requiring its removal.
    
    
    
    The extensive abdominal injuries required surgery on two occasions, one immediately after the accident which occupied six-and-a-half hours when the liver and gall bladder were dealt with, and one some seven days later to remove the spleen, the damage to which had not been observable prior to or during the earlier surgery.



13. As part of the diagnostic procedures:
    
    
    1. A left carotid arteriogram was done which disclosed no blood clot in her head.
    
    
    2. This was followed with an abdominal aortogram and hepatic arteriogram which was positive as to damage to the liver, but not for any damage to the spleen.
    
    
    3. Steriods were administered to reduce the swelling between bone and skull.
    
    
    
    
14. In order to perform the repair surgery on the liver it was necessary to enter Barbara's chest through the eighth rib interspace on the right side and to cut through the diaphragm as well as through the abdominal wall. During the course of this operation a cut was made across the end of the ribs which, at Barbara's age were cartilage. The surgical incision upon healing left a "Y"-shaped scar, the left branch of which s 17 cms. in length, running vertically from below the right breast to below the umbilicus and slightly to the right of the midline, the other branch, 16 cms. in length, running from the first scar upwards and to her right side, ending some distance below her right armpit; throughout the length of these scars they are cross-hatched by suture marks approximately three centimetres in length and approximately one centimetre apart.



15. Where the two scars meet there is a deep depression and in two other areas of her right side there are depressions where drainage tubes had been inserted. All three of these are in soft tissue, and are to be distinguished from the hollow or depressed area described in the following paragraph.



16. She has been left with a post-traumatic deformity following surgery to the right rib margin and a lower breast plate or sternum: this makes its appearance in a cartilaginous lump prominent in the lower end of the sternum and a hollow or depressed area near the anterior end of the seventh, eighth and ninth ribs.



17. Barbara was in the hospital for a month during which time she suffered much pain, her suffering being aggravated by the fact that the administration of sedatives was limited on account of her condition. For a considerable period after her return to school, she was unable to follow the regular programme provided for normal students, but has not suffered any noticeable reduction in her scholastic ability. However, she made a remarkable recovery and save for the elements of permanent disability, which will be described later, she appears to be restored to a normal healthy condition. Her mother testified that she was more subject to normal infections such as colds; Barbara appears to be disposed to minimize her problems.



18. Neurological examinations and associated tests indicate that Barbara has no neurological deficiencies although Dr. Simpson, the surgeon, admittedly testifying outside his field of specialty, expressed the opinion that with another head injury there might be additive effect to it by the injury she suffered in this accident. A similar opinion was not expressed by Dr. Hoffman, the neurologist. She has completely recovered from the damage to her tongue and the broken iliac.



19. Dr. Lindsay, a plastic surgeon called on her behalf, characterized the scar on her jaw as noticeable at a distance of two to three feet, that it did not stand out, it was not disfiguring and did not tend to attract attention; it was slightly depressed but a good colour match. As to the scars on her elbow, which were slightly raised and noticeable at close distance, they were not, he expressed, causing any problem.



20. It was the opinion of Dr. Simpson that the loss of the gall bladder had no serious consequences.



21. The residual damages suffered by Barbara are in three major areas:
    
    
    1. The loss of half of her liver and her spleen;
    
    
    2. the probability of adhesions occurring in her abdominal cavity;
    
    
    3. the cosmetic effect of the scars and deformities on her torso.
    
    Liver and spleen
    


22. According to the medical testimony, the liver has two major roles, it is the detoxification organ and it secretes bile which is a necessary element in the digestive system. It has other roles which are all less significant. While the remaining part of Barbara's liver performs it functions satisfactorily and under normal physical conditions the loss of liver tissue she has suffered should not present any disabling effect, it is conceded that the reserve capacity of the remaining portion of the liver has been seriously reduced; as a result a liver infection would now be more serious to her than to a person having a normal liver and her ability to dispose of therapeutic agents introduced to the body has been lessened -- such agents like aspirin, sleeping pills, alcohol, penicillin and any antibiotic.



23. Although Dr. Simpson testified that the spleen was not necessary for the continuance of life he did state that it had some function in the making of red blood cells and is believed to have something to do with controlling infection, the exact nature of which function was not known to medical science. He did, however, believe that its loss in combination with the reduction of liver capacity would be a continuing potential for disablement.
    
    Cosmetic injuries



24. Included in the special damages was an allowance for the performance of plastic surgery to deal with scars on the torso, above described. Dr. Lindsay, the plastic surgeon, gave his opinion that the disfiguring appearance of the scars would be reduced by 50% by early surgery and if left until age 18-20-22 there would be the expectation of having a much better scar appearance: he also testified that it might be worthwhile to try and make a 50% improvement with the idea that if she is still worried about this in her twenties, she can have the remainder taken out and get a much better final result. In Dr. Simpson's opinion the interference with the ribs which were cut could bring about interference with natural growth and he did not look for any natural improvement in the depressed or flattened area.



25. According to Dr. Lindsay's testimony, some improvement in filling in the depressed area could be accomplished by putting in silicon implants over the rib margins. This would correct the worst of the depression but would not bring it back to normal. To the extent that improvement in the depression would be thus obtained, Dr. Lindsay would expect the improvement to be permanent: since the protuberance now apparent is the result of the interference with the growth pattern of the cartilage in the area, the development of the area has not been normal -- some growth will continue until Barbara is 14 or 15 or perhaps 16, and while he would doubt that the protuberance would become very much worse, there will be some further change.
    
    Abdominal adhesions



26. Dr. Simpson testified that following surgery of the nature Barbara underwent, he would expect adhesions. Barbara's mother testified that since the accident Barbara had suffered abdominal cramps with greater frequency than any she had suffered before. Dr. Simpson's opinion was that these cramps were symptoms consistent with the presence of adhesions. On all the evidence there is a probability, and a strong one, that further surgery for adhesions will be necessary.



27. In order to support a judgment for $100,000 on the basis of the apportionment of fault agreed to by counsel, an assessment of damages at $150,000 would have been necessary. Assuming that such had been the finding of the jury, having in mind the severity of the injuries, the pain and suffering incurred and the residual physical conditions attributable to the injuries, I am of the opinion that such assessment would have been so much in excess of a proper assessment as to meet the requirements laid down for the interference by this Court with an assessment of damages by a jury.



28. Both counsel for the plaintiff and for the defendants requested that should this Court be of the opinion that the assessment was excessive, this Court should itself assess the damages rather than direct a new trial. The task of the Court has been lightened by the fact that no medical experts were called, nor medical reports filed by the defendants, the defendants being apparently content to rely upon the medical testimony and reports introduced on behalf of the plaintiff.



29. In the light of the request of counsel, consideration has been given to all the facts which have been above outlined and to all the testimony to which we have been referred by counsel. In my opinion, a proper assessment of the general damages of the infant plaintiff would be $90,000. Applying to this figure the degree of negligence above referred to, the judgment for general damages in favour of the infant plaintiff would be $60,000.



30. The appeal is allowed, judgment below varied to give effect to the foregoing. The defendant is to have the costs of the appeal if demanded.
    
    Appeal allowed; judgment varied.