



COURT OF APPEAL FOR ONTARIO

CITATION:
MacGregor v. Potts, 2012
    ONCA 226

DATE: 20120411

DOCKET: C51053

Feldman, MacPherson and Hoy JJ.A.

BETWEEN

William MacGregor, Laura MacGregor, Matthew
    MacGregor an infant by his Litigation Guardian, Robert Mahler, Robert MacGregor
    an infant by his Litigation Guardian, Robert Mahler, Jane Lemke, Ken Lemke,
    Susan MacGregor and James Hughes

Plaintiffs/ Respondents

and

Peter Potts
, Susan
    Seyler, Grand River Hospital and Kitchener-Waterloo Health Centre

Defendants/ Appellant

Frank J. McLaughlin and Sarah W. Corman, for the
    appellant

Paul J. Pape and Shantona Chaudhury, for the respondents

Heard: March 6-8, 2012

On appeal from the judgment of Justice J.R. Henderson of
    the Superior Court of Justice, dated August 27, 2009.

MacPherson J.A.
:

A.

INTRODUCTION

[1]

This is an appeal in a medical malpractice case.  It is a
    difficult case for all concerned.  Something went wrong in the delivery of the
    second baby in the family of Laura and William MacGregor.  Matthew was born,
    but with catastrophic injuries.  The MacGregors will love and take care of
    Matthew for the rest of his life.

[2]

Several doctors, nurses and a hospital were involved in Matthews
    birth.  The principal doctor, an obstetrician, has devoted his career, with
    skill and care, to the delivery of several thousand babies.

[3]

The consequences of a medical misfortune for the person injured
    and often their families can be devastating and life-altering.  The same can be
    true for the medical professional who may have caused the injury.  In the
    medical area, this shared result is very painful because the doctors, nurses
    and hospitals involved are passionately dedicated to preserving life and
    health.

[4]

The doctor defendant here is a fine professional man who has
    devoted his life to the care of mothers and children.  The MacGregor family
    must endure and respond forever to Matthews injuries and precarious
    situation.  In this sad context, a judge can  and I do  express my genuine
    sympathy to the MacGregor family and to Dr. Potts.

[5]

The appellant, Dr. Peter Potts, appeals from the judgment of
    Henderson J. of the Superior Court of Justice dated August 27, 2009.  The trial
    judge found that Dr. Potts fell below the standard of care in the course of attempting
    a forceps-assisted vaginal delivery of the infant respondent, Matthew MacGregor,
    on January 27, 1999, and in failing to obtain informed consent to that
    procedure.

[6]

The respondents commenced an action in February 2002 and served a
    jury notice.  The trial commenced with a jury.  Following the evidence of
    Matthews mother, the respondent Laura MacGregor, and two of the respondents
    obstetrical experts, and over the objection of Dr. Potts, the trial judge
    granted the respondents motion to strike their own jury notice and discharged
    the jury.

[7]

The trial proceeded over the course of three months with evidence
    from seven fact witnesses, 11 experts on liability, and nine experts on
    damages.

[8]

The trial judge determined that Dr. Potts breached the standard
    of care in three ways and that the breaches caused Matthews injuries.  Dr.
    Potts appeals from these findings and asks that the trial judgment be set aside
    and judgment entered dismissing the action against him or, in the alternative,
    that a new trial on liability be ordered.

[9]

The respondents cross-appeal on the assessment of damages, in
    particular the component of the award relating to future care costs for Matthew,
    and seek to have fresh evidence admitted on this issue only.

B.

FACTS

(1)

The parties and events

[10]

In 1996, Laura MacGregor delivered her first child, a healthy
    boy, Robert, at Grand River Hospital in Kitchener.  Dr. Tsandelis, an
    obstetrician at the hospital, delivered Robert with forceps after Mrs. MacGregor
    had been pushing in the second stage of labour for about two hours.

[11]

At about 1:35 a.m. on January 27, 1999, Mrs. MacGregor came to
    the same hospital in the first stage of labour for her second child.  She was
    examined in obstetrical triage and transferred to a labour and delivery room. 
    She signed a Consent to Vaginal Delivery form.  This general written consent
    form indicated that she consented to a vaginal delivery and additional or
    alternative investigative treatment or operative procedures, that ...is
    immediately necessary during the course of this procedure.

[12]

Dr. Susan Seyler, the physician on call from the obstetrical
    family practice in which Mrs. MacGregor was a patient, saw Mrs. MacGregor at
    about 4:00 a.m. and assumed her care.  Dr. Seyler assessed Mrs. MacGregor again
    at 5:45 and 7:45 a.m. and considered her progress in the first stage of labour to
    be slower than expected.  She decided that it would be prudent to give the
    obstetrician on call a courtesy heads up about Mrs. MacGregor.

[13]

Dr. Potts was the obstetrician on call that day.  He was an
    experienced obstetrician with a busy obstetrical practice at Grand River
    Hospital.  He delivered approximately 300-400 babies per year.  By January
    1999, he had delivered approximately 3000 babies, including at least 150
    forceps deliveries.

[14]

Dr. Seyler spoke to Dr. Potts at about 8:15 a.m.  Dr. Seyler told
    Dr. Potts that Mrs. MacGregors labour was proceeding more slowly than expected
    in the circumstances.  Nurse Lorie Freund also had a brief informal
    conversation with Dr. Potts at about the same time.

[15]

Mrs. MacGregors second stage of labour commenced at about 10:45
    a.m.  Shortly thereafter, she started to push.  At about 12:30 p.m., Nurse
    Freund noted the presence of fetal tachycardia (elevated heart rate).  She
    attempted to contact Dr. Potts, but was unable to do so.  She telephoned Dr.
    Seyler at 12:32 p.m. and informed her that Mrs. MacGregor had been pushing for
    nearly two hours and that fetal tachycardia had developed.  Dr. Seyler said she
    would return to the hospital.  Before she left her office, she spoke to Dr.
    Potts at his office and formally requested a consult.  Dr. Seyler informed Dr.
    Potts by telephone that Mrs. MacGregor was making slow progress and that there
    was an elevated fetal heart rate.  Dr. Potts agreed to meet Dr. Seyler at the
    hospital.

[16]

Dr. Seyler arrived in the delivery room at 12:45 p.m. and Dr.
    Potts attended at 12:50 p.m.  Before going to the delivery room, Dr. Potts
    reviewed Antenatal Record 1 and 2, but no other part of the hospital chart. 
    The records he reviewed did not provide information about the progress of
    labour or whether there was maternal distress.

[17]

Upon arrival in the delivery room, Dr. Potts reviewed the fetal
    heart tracing and observed the elevated fetal heart rate.  He conducted a
    vaginal examination of Mrs. MacGregor.  He formed the view that Mrs. MacGregor
    would probably not deliver spontaneously if she continued to push: she had
    already spent two hours pushing and the most difficult part of the babys
    descent was still ahead; fetal tachycardia was present; and Mrs. MacGregor was
    tired.

[18]

Dr. Potts advised Mrs. MacGregor that he felt it to be prudent to
    assist her delivery with forceps.  Mrs. MacGregor accepted Dr. Potts
    recommendation.

[19]

Between 12:57 and 12:59 p.m., Dr. Potts applied the Kielland
    forceps.  There were four variable decelerations in the fetal heart rate
    between 12:57 and 1:03 p.m.  He discovered that the fetal head was in a
    different position than what he had initially thought.  This meant that he
    would need to rotate the fetus to a different position before applying
    traction.  There were no forceps in place between 12:59 and 1:03p.m., but there
    were variable decelerations at 1:01 and 1:02 p.m.  He switched to the Tucker
    forceps at 1:04 p.m. and began to rotate the fetus.

[20]

Between 1:04 and 1:10 p.m., during the application of the Tucker
    forceps, the fetal heart tracing showed three more variable decelerations.  There
    was never a complete recovery from the third, which began at 1:08 p.m.

[21]

At about 1:10 p.m., while rotating the fetus with the forceps,
    Dr. Potts noticed that the umbilical cord had prolapsed (compressed) and was
    between the forceps blade and the maternal side wall.  He immediately
    recognized this as a rare but also dangerous situation because a prolapsed cord
    would cut off the supply of blood and oxygen to the fetus.

[22]

Dr. Potts used the forceps to push up the fetal head in an attempt
    to relieve the pressure on the cord.  He directed the nurses to prepare for a
    caesarean section immediately.

[23]

During Mrs. MacGregors next contraction, Dr. Potts applied
    gentle traction for about 30 seconds in an attempt to deliver the baby.  This
    attempt was not successful.  Dr. Potts abandoned the forceps attempt, removed
    the forceps, and briefly applied upward pressure on the fetal head with his
    hand in an effort to decompress the umbilical cord.  Dr. Seyler replaced Dr.
    Potts at 1:14 p.m. and manually decompressed the cord thereafter.

[24]

Mrs. Macgregor was taken to the caesarean section delivery room
    at 1:19 p.m.  Dr. Potts delivered Matthew at 1:26 p.m.  Matthew had no vital
    signs.  A resuscitation team took over his care immediately.  After about five
    minutes, he was revived.  Unfortunately, he was seriously brain damaged.  He is
    now 13 years old and will always be seriously disabled.  His life expectancy is
    about 32 years.

[25]

The above is a very brief, general and neutral description of
    Matthews birth.  There are other facts, including contested facts, relevant to
    the disposition of the various issues in this appeal.  I will discuss these
    facts in the context of the issues to which they relate.

(2)

The trial judgment

[26]

In his 370 paragraph judgment, the trial judge found Dr. Potts
    negligent in three respects: his decision to make a forceps intervention; his
    performance of the forceps procedure; and his failure to obtain consent for the
    forceps intervention from Mrs. MacGregor.  He held that Dr. Potts negligence directly
    caused Matthews injuries.  In a section of his reasons titled FINAL
    CONCLUSION, the trial judge summarized these conclusions in this fashion:

Given the station of the baby and the rate of descent, I find
    that Potts breached the standard of care expected of a reasonable obstetrician
    by intervening in the labour with forceps. I also find that Potts breached the
    standard of care expected of a reasonable obstetrician by disengaging the fetal
    head during the application of the Tucker forceps. These two breaches of the
    standard of care constitute negligence.

I find that Potts failed to obtain Lauras informed consent to
    the forceps intervention as he failed to give her the option of continuing to
    push, he failed to inform her of the descent of the baby, and he failed to give
    her a general explanation of the risks and benefits of a forceps
    intervention.  I also find that if properly informed a reasonable patient
    in Lauras circumstances would not have consented to an intervention by
    forceps. The failure to obtain Lauras informed consent also constitutes
    negligence.

Regarding causation, I find that but for Pottss negligence
    there would not have been a cord prolapse. The cord prolapse directly caused
    Matthew to suffer injuries from acute profound asphyxia. The cord prolapse also
    set in motion a chain of events that caused both acute profound asphyxia and
    partial prolonged asphyxia. Therefore, but for the negligence of Potts, I find
    that all of Matthews injuries would not have occurred.

[27]

The trial judge awarded damages in two categories.  The first was
    damages agreed upon by the parties to Matthew, his parents, his brother and
    grandparents, and an OHIP claim to date.  These damages totalled about
    $2,800,000.  The second category was future pecuniary damages, the major
    component of which was $246,838.15 per year for future attendant care costs.

[28]

The appellant appeals the negligence finding.  The respondents
    cross-appeal the future pecuniary damages award.

C.

ISSUES

[29]

I would frame the issues on the appeal as:

(1)

Did the trial judge err in
    dismissing the jury?

(2)

Did the trial judge err in finding
    that Dr. Potts was negligent in his treatment of Mrs. MacGregor during the
    delivery of Matthew?

(3)

Did the trial judge err in
    reaching inconsistent findings on causation?

[30]

I would frame the issue on the cross-appeal as:

(4)

Did the trial judge err in his
    assessment of the cost of future attendant care for Matthew?

D.

ANALYSIS

Dr. Potts appeal

(1)

Dismissing the jury

[31]

The respondents (plaintiffs) filed a jury notice, as was their
    right.  They began to call their evidence.  After the evidence of Mrs.
    MacGregor and two obstetrical experts they, somewhat unusually, brought a
    motion to strike their jury notice.  Dr. Potts opposed the motion.  The
    defendant Grand River Hospital took no position on the motion.

[32]

In a 13 page ruling, the trial judge granted the motion and
    struck the jury.  He observed that the parties proposed to call an additional
    21 experts and that the trial would likely last eight weeks.  He recognized
    that [c]learly it is possible for a jury to hear and decide a medical
    malpractice case.  He set out the test for discharging a jury in
Graham v.
    Rourke
(1990), 75 O.R. (2d) 622 (C.A.) and
Cowles v. Balac

(2006), 83 O.R. (3d) 660 (C.A.).  He
    found that there are many complex aspects in the factual, medical and legal
    issues in this case.  He reviewed these in an organized and comprehensive fashion,
    including the potential obstetrical issues, scientific issues relating to
    causation, and the complicated future care cost claim.  He concluded that
    because of complexity, justice for the parties in this case is best served by
    the discharge of the jury.

[33]

The appellant contends that the trial judge erred in finding that
    the case was too complex for a jury.  In his factum, the appellant says that
    the trial judge misapplied the law and discharged the jury arbitrarily.

[34]

I do not accept this submission.  The appellant does not explain
    how the trial judge misapplied the law; nor does he say what constituted the
    arbitrariness of his ruling.

[35]

The decision to discharge a jury is a discretionary one. 
    Appellate intervention is not warranted if there is a reasonable basis for the
    exercise of the trial judges discretion: see
Cowles v. Balac
, at
    paras. 40-42.  Based on the trial record and, frankly, based on the record and
    the nature of the legal argument in this three-day appeal, the trial judges
    decision to discharge the jury, and his reasons for doing so, were entirely
    reasonable.

(2)

Negligence  the forceps delivery

[36]

The trial judge found that Dr. Potts was negligent in three
    respects: (1) his decision to intervene with forceps; (2) his conduct of the
    forceps delivery; and (3) his failure to obtain informed consent by Mrs.
    MacGregor for a forceps delivery.

[37]

The appellant challenges all three of these findings of
    negligence.  In my view, it is necessary to address only the second of these
    submissions in order to resolve the negligence issue.

[38]

At trial, one of the respondents allegations of negligence
    regarding the manner in which Dr. Potts performed the forceps delivery was that
    Dr. Potts disengaged the fetal head from the mothers pelvic wall as he tried
    to rotate the fetus to bring it to a position where it could further descend to
    an ultimate delivery.  All of the experts agreed that if Dr. Potts had done this,
    it would have breached the standard of care for a forceps delivery because, as
    the trial judge explained in his reasons:

It is acknowledged that an obstetrician should not disengage
    the fetal head during a forceps intervention. Williams Obstetrics, 20th
    Edition, states under the heading Special Forceps Maneuvers the
    following:

The head should not be pushed high enough to allow
    disengagement because the cord may prolapse.

[39]

As we know, Matthews umbilical cord did prolapse during the
    forceps delivery.  The central question for the trial judge was: did Dr. Potts
    disengage the fetal head?

[40]

In answering this question, the factor that most influenced the
    trial judge was Dr. Potts own Operative Report written later that same day. 
    Dr. Potts wrote this about his application of the Tucker forceps between 1:04
    and 1:10 p.m.:

After removing the patients catheter, Tucker McLane forceps
    were applied without difficulty. ... Application was checked and correct. 
    Between contractions, the head was flexed,
disengaged
and the fetus was
    rotated without difficulty to an occiput anterior presentation.  During the
    modified Scanzonis maneuver to reapply the Tucker McLane forceps, the infant
    did not rotate back to an occiput posterior position.  In view of this, the
    infant was again rotated to an occiput anterior presentation and application
    was checked.  During the check of the application of forceps, it became
    apparent that the fetal umbilical cord had prolapsed down past the right side
    of the fetus head.       [Emphasis added by trial judge.]

[41]

In this passage, Dr. Potts describes how he performed the forceps
    rotation of the fetus and records his recognition of the unexpected and very
    dangerous development of a prolapse.

[42]

The trial judge said this about Dr. Potts report:

Looking at this excerpt from the Operative Report and comparing
    it to the acknowledged standard of care, it is easy to conclude that Potts
    breached the standard of care by disengaging the fetal head.

[43]

However, the trial judge did not rest on this easy conclusion. 
    In his testimony, Dr. Potts had two responses to his use of the word
    disengaged in his Operative Report.

[44]

Dr. Potts first response was that he did not use the word
    disengaged in the traditional sense in his Operative Report.  The trial judge
    described this response and then assessed it in this fashion:

However, when faced with this obvious error Potts stated that
    when he used the term disengaged in his Operative Report he was not using
    that word in the traditional sense.  He testified that there were two
    separate definitions of engagement that were in common usage at the time, and
    he was using the non-traditional definition of that word.

Williams Obstetrics
, 20
th
Edition, defines
    engagement as, The descent of the biparietal plane of the fetal head to a
    level below that of the pelvic inlet.  I will refer to this definition of
    engagement as the traditional definition. According to Potts, engagement can
    also mean that the biparietal plane has descended to the level of the maternal
    ischial spines.  I will refer to this definition as the alternate
    definition.

I do not accept Pottss testimony that the alternate definition
    of engagement was in common usage as of 1999.  The only textbook that
    Potts could find that mentions this alternate definition was
Williams
    Obstetrics
, 21
st
Edition, which had one reference to the
    alternate definition, although other references to engagement in the 21
st
Edition used the traditional definition.  Moreover, the one passage from
    the 21
st
Edition that used the alternate definition referred the
    reader back to another chapter in the book that used the traditional
    definition.  One has to wonder if the one reference in the 21
st
Edition was an error.

Also,
Williams Obstetrics
, 21
st
Edition, was
    published in 2001, two years
after
Matthews birth, and therefore it is
    not evidence that any such alternate definition was in common usage as of the
    date of Matthews birth when the Operative Report was written.

Further, both of the defendants obstetrical experts, Dr.
    McGrath and Dr. Barrett, stated that they were not aware of the alternate
    definition of engagement until approximately one week prior to testifying
    before this court in the fall of 2008. Given that both of these experts
    practice extensively in this field and regularly write articles and appear
    before the courts, I find that it cannot be said that the alternate definition
    was in common usage in 1999. I note that defence counsel did not cross-examine
    any of the plaintiffs obstetrical experts on this alternate definition.

Still further, I have already found that Potts was very sloppy
    in the language that he used in his Operative Report, and made several
    errors.  In my view Potts is not the type of person to be at the vanguard
    of the advancement of medical terminology.  It is not likely that Potts
    meant to use an advanced alternate definition of a term that was commonly used
    in the traditional sense by most obstetricians.

Therefore, I find that when Potts wrote in his Operative Report
    that he disengaged the head, he was using the traditional definition of
    engagement. He meant that he lifted the biparietal plane of the fetal head to a
    level above the pelvic inlet. [Emphasis in original.]

[45]

Dr. Potts second response at trial was that his detailed
    description of what he had actually done during the forceps rotation
    established that he did not mean disengaged in the traditional sense when he
    used it in his Operative Report.

[46]

Again, the trial judge specifically addressed this response:

At trial, Potts denied that he disengaged the fetal head in the
    traditional sense of that word. Potts testified that he flexed the head and
    slightly de-stationed it or disengaged it, by which he said he meant that he
    took the BPD slightly above the ischial spines.  I accept that it was
    necessary for Potts to slightly de-station the head in order to rotate the
    baby.

I have already found that the BPD was at ischial spines when
    Potts applied the forceps. In most cases the distance from the ischial spines
    to the pelvic inlet is about 5 centimeters. Dr. McGrath opined that it was
    very unlikely that Potts disengaged the head in the traditional sense because
    it would be a long push to move the biparietal plane of the fetal head about 5
    centimeters from the ischial spines to the pelvic inlet.

I do not find Dr. McGraths opinion to be particularly helpful
    on this issue as he simply sets out the likelihood that Potts was negligent.
    Again, clinical probability must be considered in conjunction with all of the
    other evidence.

In this case only Potts knows what he did when he applied the
    forceps and elevated the fetal head. But, I have contradictory evidence from
    Potts on this point. In his Operative Report Potts wrote that he disengaged the
    head, but on the witness stand Potts said that he did not disengage the head.

Given that the Operative Report was dictated at about the time
    of the events, and given that Potts later reviewed the Operative Report for
    accuracy, and given that Potts knew that the Operative Report was a very
    important document that constitutes a record of the events, and given Pottss
    credibility problems at trial, I find that the Operative Report is the most
    accurate version of what Potts did when he applied the forceps. Therefore, I
    find that when Potts did a rotation of the baby with the Tucker forceps he disengaged
    the fetal head in the traditional sense of that word.

[47]

I can see no error in these two analyses, let alone a palpable
    and overriding error needed to upset the factual finding that Dr. Potts in fact
    disengaged the fetal head.  This was a factual finding grounded in credibility,
    and therefore particularly difficult to disturb on appeal: see
Housen v.
    Nikolaisen
, [2002] 2 S.C.R. 235 at 254-55,
Waxman v. Waxman
(2004),
    186 O.A.C. 201 at paras. 347 and 359-60.  There was no dispute that if the head
    had been disengaged, the subsequent use of forceps fell below the standard of
    care for such a procedure.  In these passages, the trial judge identified and
    carefully considered Dr. Potts written description of the forceps rotation,
    his explanations at trial, the relevant medical text book, and the testimony of
    experts called by Dr. Potts who did not support him on his personal definition
    of disengaged.  He even accepted some of Dr. Potts testimony, namely, that
    it was necessary to slightly move (de-station) the fetal head from the
    mothers pelvic wall in order to rotate the fetus.

[48]

There can be no doubt that, on the basis of the record, it would
    have been possible for the trial judge to accept Dr. Potts testimony about how
    he performed the forceps rotation and reach the conclusion that Dr. Potts use
    of the word disengaged in his Operative Report was in accordance with an
    accepted secondary meaning of that word or, alternatively, was only a reporting
    error in that what he really meant to record was that he appropriately
    de-stationed the fetal head.

[49]

However, acknowledging this potential analytical framework does
    not come anywhere close to offsetting  by labelling it a palpable and
    overriding error  the analysis the trial judge did make and the conclusion
    flowing therefrom.  The trial judge fully addressed Dr. Potts evidence and
    decided against him in reasons that are supportable, factually and legally.

(3)

Causation

[50]

The appellant acknowledges that the trial judge applied the
    proper test for causation, the but for test from
Resurfice Corp. v. Hanke
,
    [2007] 1 S.C.R. 333.

[51]

However, the appellant contends that the trial judge misapplied
    the test by making contradictory findings on causation: (1) the disengagement
    of the head caused the prolapse; and (2) the substandard performance of the
    forceps rotation led to the prolapse even if the head was not disengaged.

[52]

The trial judge specifically found that the cord prolapse
    occurred at approximately 1:10 p.m., while Dr. Potts was using the Tucker
    forceps.  Since, as discussed above, the trial judge was entitled to conclude
    that Dr. Potts improperly disengaged the fetal head during the forceps
    procedure, on this basis alone it was open to the trial judge to conclude that
    this resulted in the cord prolapse that caused Matthews injuries.

[53]

The trial judge also found that Dr. Potts was negligent in
    intervening with forceps.  He found that the use of forceps caused the
    prolapse, whether or not the head was disengaged.  Therefore liability flowed
    from the use of forceps even without disengagement.

[54]

The trial judge made this observation in the context of having
    made a clear finding that the head
was
disengaged.  It is not a
    contradictory finding.  Disengagement of the fetal head was the specific
    manoeuvre within the application of the Tucker forceps that created the space
    and opportunity for the umbilical cord to prolapse.

The
    MacGregors cross-appeal

(4)

Future attendant care for Matthew

[55]

The MacGregors cross-appeal relates to only one component of the
    damages award in this case, the future care costs for Matthew.  In this
    context, the MacGregors make two submissions.

[56]

First, the MacGregors assert that the trial judge erred by, in
    effect, co-opting Mrs. MacGregor into Matthews continuing care.

[57]

With respect to nighttime care for Matthew, the trial judge
    awarded damages as follows:

PSW [Personal Services Worker] Nighttime Care  70 hours per
    week, 12 weeks per year @ $24.77 per hour = $20,806.80

Laura Nighttime Compensation  14 hours per week, 40 weeks per
    year @ $24.77 per hour = $13,871.20

[58]

The MacGregors contend that the trial judge erred by assigning
    care of Matthew to Mrs. MacGregor, even though compensated.  In my view, there
    are two responses to this submission.  First, this assignment flowed from the
    evidence about Matthews care at the time of the trial.  Second, it is
    important to note that, because of Matthews condition, the damages award in
    this case is a complex one, involving many heads of damage and many financial
    calculations.  In my opinion, the global award is fair and reasonable to the
    MacGregors.  Importantly, there is nothing in the record to suggest that,
    through communication, flexibility and co-operation, the parties cannot make
    sensible adjustments to the delivery of future care to Matthew.  Appellate
    courts should be very cautious about intervening in a single component of a
    complex damages award after a long trial, especially when the award, viewed
    globally, appears to be quite reasonable.  For these reasons, I would decline
    to intervene in the component of the damages award relating to nighttime care
    for Matthew.

[59]

Second, on the basis of fresh evidence about Matthews current
    condition, the MacGregors assert that Matthews nighttime care should be the
    same as his daytime care, namely, provided by a Registered Practical Nurse.  In
    my view, there is nothing in the fresh evidence to support such an adjustment. 
    I would not admit the fresh evidence because it would not affect the result
    reached by the trial judge.

E.

DISposition

[60]

I would dismiss the appeal and the cross-appeal.  I would dismiss
    the fresh evidence application.

[61]

Success is divided.  Given the number and complexity of the
    issues, the respondents have achieved greater success.  I would award costs of
    the appeal and cross-appeal, globally, to the respondents fixed at $100,000.00,
    inclusive of disbursements and HST.

Released: April 11, 2012 (K.F.)

J.C. MacPherson J.A.

I agree K. Feldman J.A.

I agree Alexandra Hoy J.A.


