L’auteur commence par décrire ses expériences avec Dianne Pothier comme professeure de droit et mentore. Il analyse ensuite la décision de la Cour suprême du Canada dans l’arrêt Krangle c Brisco, qui portait sur l’obligation alléguée d’un médecin négligent de pourvoir aux besoins d’un adulte ayant, au cours de son enfance, souffert de cette négligence. Deux facteurs compliquaient les choses. D’abord, au moment de la poursuite, le gouvernement au pouvoir au moment du litige aurait couvert les coûts liés aux soins de l’enfant à l’âge adulte. Ensuite, l’enfant n’avait que dix ans au moment de l’audience devant la Cour suprême du Canada. Le gouvernement allait-il continuer d’offrir le programme à l’enfant pendant toute sa vie ? La Cour a traité de ces questions en prévoyant un fonds en fiducie. L’auteur soutient qu’il existe une meilleure solution. Même s’il accepte la position de la Cour selon laquelle le gouvernement devrait assumer les soins des adultes handicapés, il n’existe aucun impératif constitutionnel à cet égard. Quelqu’un (les parents ou le gouvernement) devra payer la somme de plus de 1,5 million de dollars qui n’est pas incluse dans les dommages-intérêts. Le recours à un fonds en fiducie éviterait que les parents s’enrichissent, tout en veillant à ce que le médecin défendeur paie le montant intégral pour les dommages causés. Les deux bénéficiaires de ce fonds seraient le gouvernement et les parents— une ou l’autre de ces parties serait remboursée par le fonds. Selon l’auteur, cette solution est compatible avec la jurisprudence de la Cour suprême du Canada en ce qui concerne les dommages-intérêts. Pothier aurait abordé d’un point de vue plus large la manière de réaliser les objectifs sociaux que la Cour considère comme importants. L’auteur espère qu’à la prochaine occasion, la Cour suprême du Canada suivra la direction de Mme Pothier.
The author begins by detailing his experiences with Dianne Pothier as law professor and mentor. He then turns to the Supreme Court of Canada’s decision in Krangle v Brisco, which centred on the alleged obligation of a negligent doctor to pay for the adult care of a child who had been injured by that negligence. There were two complicating factors. First, there was a government in place at the time of the suit that would cover these adult-care costs. Second, the child was only ten years old at the time of the Supreme Court of Canada hearing. Would the government continue to offer the program throughout the life of the child? The Court dealt with these issues through a contingency. The author argues that a better solution exists. While he agrees with the Court that the [End Page 128] government should take responsibility for the care of disabled adults, there is no constitutional imperative to do so. Someone (the parents or the government) is going to be paying the more than $1.5 million that is not included in the damage award. The use of a trust would prevent a windfall to the parents while ensuring that the defendant doctor paid for the full amount of damage caused. The two payees of this trust would be the government and the parents—either of these parties could be reimbursed by the trust. In the view of the author, this solution is consistent with prior Supreme Court of Canada case law on damages. Pothier would have taken a broader view of how to achieve the social goals that the Court says are important. The author hopes that the next time the opportunity arises, the Supreme Court of Canada will follow her lead.
My Experiences
To say that Dianne Pothier has affected my life greatly would be an understatement. I am a person with a disability who uses an electric wheelchair. Dianne (as she prefers to be called by her students and others) taught me public law in my first year of law school at Dalhousie University in 1994–5 and constitutional law the following year. However, while I respect her teaching very much, these courses are not what I will remember most about Dianne. When I was in first year and was taking the mandatory course in legal research and writing, I could not remove books from high shelves. (This was before the widespread availability of statutes online.) When I asked for assistance from the faculty administration, I was politely told that my student colleagues would have to help me. I tried this approach for one assignment. While my colleagues were helpful, many of them asked me to wait until they were going to get a book for themselves, at which point they would help. The problem was that I needed about twenty books for the assignment. This meant an extra hour or more per visit to the library, during which I accomplished nothing.
One day, after a public law class, I decided to seek guidance from Dianne. After all, she was teaching us about case law under the Canadian Human Rights Act as well as section 15 of the Canadian Charter of Rights and Freedoms.1 She had a visible disability herself. I was not sure if she could help. However, I convinced myself that there was no harm in seeking a second opinion. Within a week, the then dean of the faculty approached me after a class in criminal law. He informed me that there would be a meeting the following week between me, the dean, the associate dean, and Dianne to discuss solutions to my library access problem. I have no doubt that Dianne’s persuasive advocacy had a large hand in the administration’s reversal. Yet Dianne was not finished assisting me. She had several [End Page 129] research students, and she told me that if I gave at least twenty-four hours’ notice, one of her students would be in the library to help me get my books. Without this encounter, I suspect my law school experience might have been vastly different and not simply because I would have had much more time wasted in the library. Rather, Dianne’s gesture proved that the law school, and perhaps the law itself, had a place for me that did not require me to be the only one adapting.
My second particularly memorable experience with Dianne occurred much later. Prior to law school, I had suffered a serious back injury when the wheelchair lift I was using fell out of my van. When my parents decided to sue, liability was admitted immediately. The only issue was the quantum of damages. Though I had never heard the words “pre-existing condition” from either lawyer, the level of damages being discussed made it clear that my cerebral palsy had an effect on the negotiations. The basic argument was that tort law compensates only for loss suffered as a result of the tort in issue. Since I was already in a wheelchair, the loss suffered was less severe than for another person. After all, I could not run, walk, or engage in many other activities before the tort. Therefore, lesser compensation should result.
When I was in law school, I began to articulate to my family the fundamental unfairness of this outcome. My father knew that I wanted to be an academic and suggested that I use this topic for a paper. I politely declined, saying that I did not want to be the academic in the wheelchair who spent all day concerned with disability issues. My reticence remained until the 2003–4 academic year, when Dianne contacted me. She and Richard Devlin were developing a book about critical disability theory, and Dianne asked whether I would be willing to write a chapter. Since it was Dianne who was extending the opportunity, I felt I should take up the challenge. In 2005, the volume Critical Disability Theory: Essays on Philosophy, Politics, Policy and Law was published by UBC Press, with Dianne and Richard as co-editors. It included my article entitled “Damage Quantification in Tort and Pre-Existing Conditions: Arguments for a Re-Conceptualization.”2 With Dianne’s encouragement (and persistence), it became an early writing effort of which I am very proud. However, I also learned that my father and Dianne were correct to push me to write it. Writing about disability did not require that I become defined by it.
As I was writing the piece, I thought often of Dianne. She is an expert in constitutional law, labour law, and feminist analysis of the law, recognized for the quality of the ideas she puts forward, not her disability. She meets disability issues head-on, but neither her own disability nor the field of disability studies has defined her. For giving me a role model, so that every part of me could be [End Page 130] reflected in my work as an academic, without any part of me being subjugated to any other, I owe Dianne a deep debt of gratitude.
The rest of this article proceeds as follows. The second section sets out the facts and holdings of Krangle (Guardian ad litem of) v Brisco,3 a case that centres on compensation in tort law—an issue that has, as my introduction reveals, personal resonance. The remainder of the article details a different approach to the legal dilemma revealed in the case—that is, the compensation for the provision of care for those who are disabled by the wrongs of a tortfeasor. This is an approach that a court could take if they took disability theory seriously, in the spirit of Dianne. The third section lays out a solution I believe to be preferable to the one offered by the Supreme Court of Canada. The fourth and fifth sections detail policy-based and Charter-based arguments in support of my proposed solution. The sixth section focuses on the provincial government’s claim against the doctor that would be necessary for the proposed solution to be workable. The seventh and eighth sections examine whether a trust can lawfully be used in these circumstances and whether the proposed solution would violate certain rules on damages. The analysis concludes in the final section by drawing analogies between my personal experiences with Dianne and the case law.
Krangle
In 1992, Mervyn Krangle was born with Down syndrome. As Chief Justice Beverley McLachlin explained in her decision,
Mervyn’s parents have sued [their obstetrician] for the cost of raising Mervyn and related damages, on the ground that he failed to advise Mrs. Krangle of the availability of testing which would have revealed the Down syndrome, in which case she would have had an abortion. All agree that [the obstetrician] was at fault and that as a result the Krangles suffered some loss. The only issue before this Court is the amount of that loss—specifically, whether the Krangles are entitled to damages for the cost of caring for Mervyn after he reaches adulthood. It is conceded that Mervyn himself has no cause of action.4
The parents were to be compensated for the cost of their son’s care until adulthood, and so the damages argument was centred on adult care.5 In British Columbia at the time, upon reaching adulthood, Mervyn would have been placed in a supervised [End Page 131] home care environment, paid for by the government.6 All agreed that this living situation would be in Mervyn’s best interest.7 Thus, the defendant argued that the parents did not suffer a loss with respect to this element of care.8
The plaintiffs had argued that government policy might change by the time Mervyn reached the age of majority, nine years after the Supreme Court of Canada’s decision. Courts have recognized that given the possibility of change over time, a “contingency” may be needed. A contingency is generally used where a significant possibility that a second, alternate set of facts that may come to pass (though it is not “more likely than not” under tort law), and therefore some additional damages might be awarded in case this set of circumstances does arise.9 A contingency thus recognizes the potential cost of an uncertain future event.
In Krangle, the trial judge recognized that there was a possibility that the government program, which was expected to provide for Mervyn’s adult care, would be unavailable at the time of Mervyn’s passage into adulthood.10 The trial judge found there was only a 5 percent chance that the government program would not provide for Mervyn’s adult care when the need for such care arose. He also found that the costs of care after the age of majority if government care was unavailable would be approximately $1.6 million. A contingency is a matter of simple arithmetic.11 Take the full amount of the potential damage (in this case, $1.6 million) and multiply it by the likelihood that the contingency would arise (5 percent = $1.6 million × .05 = $80,000). The contingency was worth $80,000.12
The parents had a second argument. Under amendments13 to the province’s Family Relations Act,14 the provincial government had the right to seek compensation from anyone who was required to provide care for Mervyn.15 The parents argued that under that legislation the government might pursue compensation from them for the cost of Mervyn’s care, even if the current program remained in place.16 Therefore, even with the government program, the parents claimed [End Page 132] that there was damage that arose and that the doctor had to compensate the parents for the money that could be claimed by the government under the act for the care provided by the government program.17
The Supreme Court of Canada agreed with the contingency, but did not accept the parents’ second argument. The Court held that the trial judge was correct to apply a contingency at 5 percent to adult care costs.18 With respect to the Family Relations Act, the Court held that the provision at issue applied only where the adult could not remove himself from the charge of the other individual.19 The Court ruled that this provision did not apply since the government program would allow Mervyn to withdraw from the charge of his parents.20 Thus, since the government program was in place at the time of the trial, the parents could not recover the costs of Mervyn’s adult care.
The Better Solution
In my view, Krangle should have acknowledged that the parents and the government would both have claims against the doctor. The trial judge’s assessment of the quantum of damages should stand. However, an alternative approach to this kind of problem would enable the full $1.6 million to be placed in a trust. The trust funds would be accessible to the party (the parents or the provincial government) who assumed the relevant costs for Mervyn’s care as an adult, and responsibility for any additional costs would be determined if and when those costs were incurred.21
Policy Arguments
There are three parties who could be responsible for the costs of Mervyn’s care: the doctor, the parents, and the provincial government. Between these three, the doctor is culpable in the eyes of the law, while the government and the parents are not. Basic principles of tort law require that foreseeable losses caused by the negligence of culpable parties are to be compensated by damages.22 [End Page 133] Despite the uncertainty of the future costs, the law requires legal suits to be brought in a timely way and damages be fixed at the time the decision is rendered.23 The law must therefore attempt to approximate what the future costs will be, without waiting for those costs to be incurred.24
The Supreme Court of Canada was quite clear that the state should be responsible for the care of disabled adults:
It is the policy of the Province of British Columbia to provide care for disabled adults . . . When a disabled person becomes an adult, the burden of his or her care shifts from the parents to society as a whole, and it is accepted as fair and just that the continued burden of care of disabled adults should be spread over society generally. At one time, it may well have been the moral responsibility of parents to care for a disabled child for as long as they lived. But for some decades now, that moral responsibility has shifted to British Columbia society as a whole, as expressed by legislation enacted and preserved by successive governments.25
I think the Court is right that the state should take the responsibility to provide care to disabled adults. However, there is no constitutional obligation to do so under the current jurisprudence. Governmental fiscal austerity often threatens social programs. 26 As a result, the common law can, and, in my view, should, also be interpreted in such a way that the law achieves the societal goal that the Court identifies—that is, to spread the financial costs of the care of disabled adult children to society as a whole.27 [End Page 134]
Additionally, given the Court’s approach, the quantum of damages will inevitably be inaccurate. If the program is in place, the $80,000 contingency becomes a windfall profit to the parents.28 If the program is not in place, then the parents are obligated to provide for Mervyn’s care.29 It was determined by the trial judge (and accepted by the Supreme Court of Canada)30 that the costs would be $1.6 million. As Justice Thomas Cromwell of the Supreme Court of Canada wrote extra-judicially,31
[i]n negligence, an award to the successful plaintiff is generally based on detriment flowing from the tortfeasor’s act—that is, the award should restore the plaintiff to the position he or she would have been in had the negligent act not been committed. This is sometimes referred to as an award to compensate the plaintiff for adverse changes in his or her position in reliance on the defendant. (The Supreme Court of Canada has recently referred to this as the “normal expectancies measure because it aims to re-position the plaintiff to the destination he or she would normally have reached had it not been for the tort”: see Krangle (Guardian ad litem of ) v. Brisco, [2002] 1 S.C.R. 205 at para. 22).32 [End Page 135]
Does the result in Krangle accord with this principle? In my view, it does not. The doctor made a mistake that caused damage, but the award paid to the Krangles is approximately $1.5 million less than the cost of that mistake. If the doctor does not pay the full costs of the damage caused, there is a windfall for the doctor (or, more realistically, his insurer). If the parents receive the funds, but do not pay for Mervyn’s care, there is a windfall for the parents. However, if the money is paid to whomever provides the adult care for Mervyn (the provincial government or the parents), there should be no windfall for anyone.
The Charter
This article takes a broader view of the societal implications of tort law than does the decision in Krangle. The argument made here is not that the law could not support the decision made. Rather, it is that the law of torts could be improved and could better serve societal goals. To support this approach, I look to other areas of law. In this section, I look to the Charter. The Charter can apply directly or through the application of Charter values. I take the view that there is a potential argument for a direct application of the rights guaranteed by the Charter.33 Nevertheless, there are two reasons against pursuing this line of argument. First, it is quite a technical argument, with potential barriers that some might consider almost insurmountable. However, perhaps even more importantly, there is a strong emerging consensus (in both the jurisprudence and academic literature) that suggests that the values underlying the Charter are valid considerations in the common law.34 This is true whether the value is an explicit Charter right35 or is a more general philosophical concept [End Page 136] underlying one or more explicit rights.36 As the Court held in Retail, Wholesale and Department Store Union, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd: “Although s. 2(b) of the Charter is not directly implicated in the present appeal, the right to free expression that it enshrines is a fundamental Canadian value. The development of the common law must therefore reflect this value.”37 By analogy, I believe the plaintiffs could have argued that the value of mobility within the Canadian federal system is a value to be protected. Section 6 of the Charter provides Canadians with the right to move, reside, and pursue a livelihood freely within Canada, subject to certain qualifications.38 In my view, where decisions are being made by a branch of government, consideration should be given to the impact of the decision on constitutionally protected freedoms. If a decision by a court would impact the mobility rights of a party, the Court should attempt to craft a damage award that respects those rights, rather than assuming that they will not be exercised.
The analysis of the Court in Krangle is predicated on the assumption that the Krangles will remain in British Columbia until and after Mervyn reaches the age of majority. My argument is not that all programs offered by all provincial governments must be identical to meet the dictates of section 6. Rather, the argument is much simpler. As a matter of preserving Charter values, the highest Court in the land should not assume that the jurisdiction of origin will necessarily remain the claimants’ only place of residence. Given the constitutional protection of mobility within Canada, the Court should not create disincentives to exercising those rights (and forcing reliance on a government program could do so). The law with respect to section 6 provides sound justification for an approach that guarantees the parents (or the government) full recovery.
The Government Claim
If the government has no claim against the doctor, the use of a trust becomes problematic.39 A trust relies on a property-like claim to the subject matter of the trust.40 In other words, a trust does not exist in the abstract. In order for the [End Page 137] government to have a trust claim to the damages, there must be a legal basis for the underlying claim by the government. I see three potential bases for such a claim. First, the government could assert a statutory claim against the parents to cover the costs of care for Mervyn, which the parents could use to assert that there is a loss for which compensation is payable.41 As mentioned earlier, the argument was made in Krangle that if the parents did not pay the costs of Mervyn’s care, the government would have a claim for indemnity and contribution for the costs incurred, which was rejected on the basis that there was no legal obligation on the Krangles to support Mervyn after the age of majority.42
An analogy may be made to tobacco companies who have harmed the health of individuals. A number of provinces, including British Columbia, have passed statutes to allow the provinces the right to sue to recover healthcare costs associated with tobacco use from the tobacco companies that sold their products in the province. 43 The constitutionality of this statute was confirmed by the Supreme Court of Canada.44
British Columbia has passed similar legislation to provide for recovery against “wrongdoers” whose negligence causes further losses to the province’s healthcare system.45 The constitutionality of the tobacco-specific statute, in my view, ends any squabbling over the constitutionality of the more general health care costs recovery statute. The defined term of “wrongdoer” is certainly broad enough to include doctors.46 This statute was passed in 2008. The province could have a direct claim against the doctor. There is thus an argument to be made that this fact alone should be sufficient to alter the Supreme Court of Canada’s analysis in Krangle.
Nonetheless, there are several reasons why it is insufficient to end the analysis at this point. Most importantly, not every province has an equivalent statute. Therefore, the law of torts in those provinces cannot rely on statutory amendment to deal with this issue. A second argument revolves around the possible application of fiduciary duty. A doctor automatically owes a fiduciary duty to his or her patient by the nature of their relationship.47 Although some relationships do not [End Page 138] automatically take on a fiduciary character, a court may find on a case-by-case basis that a fiduciary duty exists.48 For several reasons, the doctor may owe a fiduciary duty to the province through his involvement in the provincial health care insurance program. What indicates a fiduciary relationship? The combination of Frame v Smith49 and Lac Minerals Ltd v International Corona Resources Ltd50 offer one set of criteria:
• the fiduciary has scope for the exercise of some discretion or power;
• the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
• the beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the discretion or power.
A patient has to put trust in a doctor’s skill and training to get proper health care. Similarly, in single-payor health care systems, such as the Canadian provinces, the province bears the financial burden of providing health care to its citizens.51 The government cannot effectively monitor every doctor’s treatment of patients—the province depends on the doctor’s knowledge and skill set. In the case of the patient, it is the patient’s interest in medical health that is affected by a doctor’s intervention. In the case of the province, it is a financial interest that is affected. Despite this difference, the argument would be the same: the party (whether the patient or the province) cannot control the discretion of the doctor and is therefore vulnerable to the decisions made by the doctor.52 [End Page 139]
There are cases that suggest a different, though related, test for fiduciary relationships. 2475813 Nova Scotia Ltd v Rodgers53 and Hardman Group Ltd v Alexander54 both refer to three principles:
1. separation between ownership and control;
2. open-ended obligations, in that specific conduct and definite results are not stipulated; and
3. an “asymmetry of information concerning acts and results.”
To the extent that the two tests (Frame/Lac Minerals and Rodgers/Hardman) are in fact different,55 this situation, in my view, meets both of them. For example, while patients have ultimate control over their medical treatment,56 they are generally dependent on their doctor’s expertise to provide the information that guides their decision making. Similarly, federal cost-sharing is predicated on the treatment being “medically required,” and the term “medically required” is not defined under the Canada Health Act.57 Such a decision requires medical expertise that could be provided only by a medical professional. Therefore, there is a separation in the health care field between the ownership of the public purse and its control for the purposes of cost-sharing (based as it is on a medical decision that the government may have little or no chance to assess).58
It is very possible for the doctor to owe a fiduciary duty to two parties simultaneously. For example, it is quite clear that directors owe a fiduciary duty to the [End Page 140] corporations of which they are directors—another relationship in which fiduciary obligations inure almost automatically.59 However, just because there is a virtually automatic fiduciary relationship between a corporation and its directors, it does not follow that the director cannot owe a case-by-case fiduciary duty to others as well.60
Third, and finally, in Krangle, all elements of negligence towards the government by the doctor are present,61 other than the duty of care, which I argue exists. I begin with the celebrated statement of Lord Atkin in M’Alister (or Donoghue) v Stevenson:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.62
Given this articulation of the care relationship, the question is whether a doctor ought to have the government in mind. In my view, the answer is “yes.” A doctor’s medical error will usually fall to the rest of the health system to correct and ameliorate. To the extent that hospitals and/or physicians are involved in this subsequent care, the government will be the single payor for such care.63 Therefore, it is reasonable to think that the government is likely to suffer a loss as a result of the error, as a doctor paid through that system would surely know.64 Thus, it would seem there is a basis for the assertion that the government may have a claim against a negligent doctor in a single-payor health care system. [End Page 141]
In the end, the law applicable to torts offers three different routes by which the government could assert a claim to damages from a negligent doctor. The first is in the hands of the government itself, in the ability to create a statutory claim against the doctor. There is some history of governments making such a claim. Second, the law of fiduciary duty, in its various formulations, suggests that a fiduciary duty exists between the doctor and his payor—that is, the government. Since such a relationship exists, the doctor must protect the fiscal interests of the government. Therefore, acts that require further expenditures by the government are compensable. Third, in these circumstances, by definition, the doctor is negligent. The only question is whether a duty of care is owed to the government. If it is, then the government’s claim in negligence would be valid. There is a powerful argument that the government is owed a duty of care in these circumstances. Therefore, negligence could be made out as well.
The Role of the Law of Trusts
The law of trusts offers one way to achieve justice when deciding remedies. In fact, the majority of the BC Court of Appeal in Krangle was prepared to use a trust in its remedial order:
The use of a court imposed trust is not unknown in damage actions. In personal injury cases, damages for voluntary services are impressed with a trust routinely in favour of the third party who has supplied the services to the plaintiff . . . The present case would represent an extension of that concept. It arises because of advances in medicine which allow fetal detection of Down syndrome and create the circumstances that have led to this litigation. The law should respond to changing circumstances where existing remedies can be adapted to meet new exigencies. The trust remedy is flexible and well-suited to the circumstances of this case. The sole purpose of the damages awarded for cost of future care of Mervyn is to pay his cost of care. The imposition of a trust would insure that the damages awarded for cost of care are dedicated to the purpose for which they are intended. The trust would protect the funds from dissipation or imprudent investment, insulate them from potential creditors of the parents and ensure [End Page 142] that the portion of the funds remaining on the death of the parents would remain available for his care if he survives them.65
My reasons for using a trust do not simply replicate those of the appeal court. I would impose a trust because the money, while paid to the parents, is not necessarily for their benefit. The parents would be trustees, and both the parents and the government would be beneficiaries. Each of the beneficiaries would have an interest in the funds to the extent that the beneficiary contributed to the costs of Mervyn’s care.
Given that the majority of the BC Court of Appeal was willing to use a trust to protect the assets, the use of the trust in these circumstances should be uncontroversial. 66 However, in case this is insufficient, a constructive trust may be relevant. One of the reasons for using a remedial constructive trust is as a means to combat what would otherwise be an unjust enrichment. As explained by the Supreme Court of Canada in Pettkus v Becker, there are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation, and absence of any juristic reason for the enrichment.67
Despite subsequent case law,68 this nonetheless remains a valid test for a remedial trust.69 Quite clearly, someone will have to pay the costs associated with Mervyn Krangle’s care. Absent the doctor’s error, the payment of these costs would not be necessary. Therefore, there is a deprivation to whomever pays. If there were but a single innocent party involved (that is, the parents), it is clear that the doctor would have to pay the full damage award. There is therefore a concomitant enrichment of the doctor, as he benefits from the fact that there are two potential plaintiffs.
This leaves only the question of juristic reason. When one takes into account the fact that there are two innocent parties, that neither will be paid for the post-majority care for Mervyn, and that the doctor would receive a windfall by not being required to compensate despite his fault, the additional element of a single-payor health care system does not provide a juristic reason for the negligent doctor to not pay for his mistake to the full extent. Therefore, a constructive trust is properly imposed to force the negligent party to part with the damages, to ensure that the parents do [End Page 143] not receive a windfall gain if the government pays for care, and to apportion the funds in a way that ensures Mervyn’s care. The use of the trust is both legally permissible and, in my view, appropriate in these circumstances.
Damages
Some readers may claim that the approach offered in this article is contrary to the rules of damages, particularly as in Watkins v Olafson,70 where a Manitoba Court of Appeal award of a monthly stipend for the costs of future care71 was held to be inappropriate.72 The Supreme Court of Canada held that a stipend would constitute a significant change in the law, with the possibility of many unforeseen consequences.73
In my view, this is not the case here. For example, as mentioned earlier, this change in the law could be restricted to a situation where there is a health care professional involved as a defendant. In order for this to apply, there must be two or more potential plaintiffs, one of whom is a government in a single-payor health care system. Also, unlike the change from lump sum to periodic payments, the solution offered here would not affect the determination of quantum of damages at all. The Manitoba Court of Appeal’s periodic payments in Watkins were for life, so from the time of judgment to the plaintiff’s death the defendant could never know how much was owed. In the solution offered here, the total quantum of damages is still determined at the date of judgment. Furthermore, by reducing dependence on contingencies, this proposed solution would actually reduce uncertainty.
McLachlin J writes as follows in Watkins:
Another difficulty involves security. In the case at bar security appears not to have been an issue, one of the respondents ordered to pay being a provincial government.[74] Even so, concerns arise; could the plaintiff be certain that the government would not, at some future date, curtail his [End Page 144] right to damages? Even with an apparently solvent defendant, it is unfair and unacceptable to place the plaintiff in the uncertain position of not being sure the money he needs to meet his or her needs will be forthcoming in the future.75
In 1989, McLachlin J was seemingly concerned with the possibility of a change in government policy and used this uncertainty as a reason not to make a change to the common law. In 2002, McLachlin CJ was relatively dismissive of the idea that a change in government policy might occur (by accepting the finding of the trial judge that there was only a 5 percent chance of change), even though the program would not even be used for nine years. The reason for this seeming change in approach is not entirely clear.
Back to Dianne
In the introduction, I indicated that I would link the analysis offered earlier to my experiences with Dianne. Dianne believes that making space in the traditional paradigm for those with disabilities is a collective responsibility, not one that lies only on the person with the disability.76 The Supreme Court of Canada seems to agree, at least in principle. However, the decision in Krangle leaves uncertainty as to whether the law will fulfil the promise of this principle. In my view, the law of torts can fill this gap.77 Dianne (with others) helped me find a voice with which to advocate for my needs. Yet, the Court found the advocacy of the Krangles insufficient to move the law towards a position that could better protect those caring for people with disabilities, be it family members or government. Dianne was willing to stick her neck out to help me when there was absolutely [End Page 145] nothing that compelled her to do so, other than her belief that the system could be better. I invite the Court to stick its collective neck out and make the tort system better.
Some may say that this case is not about a person with a disability. Though Mervyn is not a party to the litigation, his disability by definition cannot be divorced from the tort claim of the parents. Therefore, to say that a case such as Krangle will not have a large impact on the disability community would be erroneous. 78 I recognize that the solution proposed in this article is novel. Yet, given the policy goals that the Court itself says that it is trying to enforce, a holding that makes this outcome more than a significant likelihood would seem to be in order. I would invite the Court to not only express the right sentiments (which I commend it for doing) but also to turn those sentiments into the driving force behind the law in this area. In short, I wish that the Supreme Court of Canada thought more like Dianne, with a willingness to push the law where it ought to be, instead of being content to wait and see whether the continuation of government programs or statutory amendment will make judicial changes to the law of torts unnecessary.
Final Thoughts
On my first day of law school, Dianne Pothier was at the front of the room. She was to teach public law. She told us that in her view all law was public law. I remember this statement vividly at least in part because I was uncertain as to what she meant at the time. Now, I believe that she meant that all law is meant to serve a public purpose, even when the law is resolving a dispute between two private parties, such as in Krangle. For Dianne, there is always, or almost always, a broader issue to be settled than just who is paid and who is not. If one does not put proper emphasis on these public values, the law itself loses credibility and its sense of public purpose. In Krangle, the public values at stake included the allocation of cost where there are two innocent parties (the parents and the government) and one culpable one (the doctor). These values also include avoiding a law that [End Page 146] requires parents to pay the costs of caring for disabled adult children. While the Supreme Court of Canada’s decision might be sufficient for this purpose, it might not. The parents might have to pay a substantial sum of money if the program is not in place when it is needed. Throughout her career, Dianne has been a tireless worker for the improvement of the law, asking whether the law was serving a variety of public values appropriately. When it comes to Krangle, I hope that I have set out an argument that does Dianne’s legacy proud. I also hope that the Supreme Court of Canada might think about improving the law to better protect the interests of those who need it most. [End Page 147]
Darcy L. MacPherson is an associate professor in the Faculty of Law at the University of Manitoba. His research interests include disability rights, corporate law (including criminal liability), corporate governance, and partnerships. A professor since 2002, he has taught courses in corporate law, secured transactions, criminal law, contracts, agency, and partnerships and tax.
Footnotes
1. Canadian Human Rights Act, RSC 1985, c H-6. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [Charter].
2. Darcy L MacPherson, “Damage Quantification in Tort and Pre-Existing Conditions: Arguments for a Re-Conceptualization” in Dianne Pothier and Richard Devlin, eds, Critical Disability Theory: Essays on Philosophy, Politics, Policy and Law (Vancouver: UBC Press, 2006) 248.
3. Krangle (Guardian ad litem of) v Brisco, 2002 SCC 9, [2002] 1 SCR 205 [Krangle]. A full panel of nine judges heard this appeal.
4. Ibid at para 2.
5. Ibid at para 26.
6. Ibid at para 4.
7. Ibid.
8. Mervyn’s claim would be a “wrongful life” claim and, thus, unlikely to find favour with a Canadian court. See Philip H Osborne, The Law of Torts, 4th edition (Toronto: Irwin Law, 2011) at 159–60.
9. Ken Cooper-Stephenson, with chapters by Iwan Saunders, Personal Injury Damages in Canada, 2nd edition (Toronto: Carswell, 1996) at 449.
11. Graham v Rourke (1990), 75 OR (2d) 622, 74 DLR (4th) 1.
13. Though the amendments were made shortly after the trial of the action in Krangle, both the British Columbia Court of Appeal and the Supreme Court of Canada seemed to treat the amendments as if they were in force. This is reasonable, considering that the Supreme Court of Canada found that their presence (or absence) would not have altered the analysis.
14. Family Relations Act, RSBC 1996, c 128, s 88(1) [FRA].
18. Ibid at para 29.
19. Ibid at paras 30–8. By interpreting the FRA, supranote 14, in this way, as long as the government program remains in place, there is no obligation on the parents to pay the associated costs. Therefore, the Court assumes that the program will continue.
20. Ibid at para 34.
21. Even absent the FRA, supranote 14, the fiduciary duty of parents to their children is virtually automatic. See Lac Minerals Ltd v International Corona Resources Ltd, [1989] 2 SCR 574 at 606, 69 OR (2d) 287 (per Sopinka J, dissenting but not on this point; McIntyre J concurring) [Lac Minerals Ltd, cited to SCR]. Additionally, caregivers owe a fiduciary duty to their care recipients. See KLB v British Columbia, 2003 SCC 51 at para 41, [2003] SCR 403, where the Court had held that caregivers would owe a fiduciary duty, though on the facts the government had not breached its duty.
23. Under the Limitation Act, RSBC 1996, c 266, s 3(5), the action for negligence would have to be commenced within six years. It is important to recall that the action is brought on behalf of Mervyn’s parents, not him, because a plaintiff’s disability can change limitation periods.
24. As will be discussed later in this article, in the discussion of Watkins v Olafson, infranote 70, the tort system is based on a lump sum amount, for past, present, and future needs. Therefore, the contingency system is based on the uncertainty created by this system. The argument made here is that if we can get closer to an accurate determination of damages without doing violence to this basic lump sum principle, we as a society ought to do so.
26. For an example of this, see Reference re: Canada Assistance Plan (BC), [1991] 2 SCR 525, 83 DLR (4th) 297. In this case, the federal government sought to amend the legislation governing transfer payments to some of the wealthier provinces. Transfer payments from the federal government are often used to support social programs in the provinces. On this point, see Michael J Prince, “Designing Disability Policy in Canada: The Nature and Impact of Federalism on Policy Development” in Alan Puttee, ed, Federalism, Democracy and Disability Policy in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2002) 29 at 49. According to the Canada Assistance Plan case, the amendments at issue were specifically undertaken as a means to reduce the federal deficit. Therefore, clearly, federal fiscal concerns motivated changes to the funding of provincial social programs that were designed in whole or in part for those with disabilities.
27. Some might suggest that what is being put forward here is not the absolute best way to accomplish this goal. I do not hold the position that this is, or should be, the last word on tort reform in this area. Rather, my point is four-fold. First, the Court’s decision may leave a gap in the tort system. Second, a different analysis may fill that gap. Third, as a matter of incremental change to the common law (see London Drugs Ltd v Kuehne and Nagel International Ltd, [1992] 3 SCR 299, 97 DLR (4th) 261 (Iacobucci J for the Court), I wonder whether the common law should stand still and wait for the legislature to act. Fourth, as a society, we should begin a conversation about what is the best way to deal with these issues. In other words, I hope that this article will spark debate. If a person does not believe that the ideas for change put forward in this article are the right ones, I hope there is something better and that this article will provoke those other ideas to the forefront.
28. I am not suggesting the removal of contingencies from tort law, only that getting to the true cost of the loss without using contingencies is preferable to their use. Here, the argument is that a contingency is unnecessary because there is a better method (or more than one) by which the law can get closer to true compensation for the damage caused by the negligence of the defendant. It is important to remember that the reason for the case was not an issue of causation. It was a matter of the identity of the plaintiff—that is, the Court held that the plaintiff parents had not suffered a loss. If we can get to a socially better result (to avoid the self-interest of the parties) by avoiding the use of a contingency, in my view, we should do so. Where, however, there is no better option, I am not opposed in principle to the use of a contingency.
31. While Cromwell J is now on the Supreme Court of Canada, he was sitting on the Nova Scotia Court of Appeal at the time of Krangle.
32. The Honourable Mr Justice Thomas Cromwell, “Money Remedies: Towards A Functional Approach” in Barbara Hamilton and Byron Williams (co-chairs), Remedies: From Dollars to Sense? The Proceedings of the 2010 Isaac Pitblado Lectures (Winnipeg, MB: Law Society of Manitoba, Manitoba Bar Association, and University of Manitoba Faculty of Law, 2010) at I-3 [underlining in original; italics added]. It is noteworthy that the excerpted statement relies specifically on Krangle, supranote 3
33. The argument could run something like this: a hospital, in delivering primary health care to Mrs Krangle, is a government actor, because it is carrying out a government program (see Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577). In so doing, the hospital is subject to the Charter (see Stoffman v Vancouver General Hospital, [1990] 3 SCR 483, 76 DLR (4th) 700). Where a common law rule violates the Charter, it can be struck down (see R v Swain, [1991] 1 SCR 933, 125 NR 1 (Lamer CJ, for the majority)). This is true even if individual court decisions are not generally subject to the Charter.
34. There is a significant secondary literature on the subject of Charter values, in a variety of contexts. See, for example, June Ross, “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996) 35 Alberta Law Review 116; John DR Craig, “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997) 42 McGill Law Journal 355; Timothy Macklem, “Vriend v Alberta: Making the Private Public” (1999) 44 McGill Law Journal 197; Charles Morgan, “Employer Monitoring of Employee Electronic Mail and Internet Use” (1999) 44 McGill Law Journal 849; Peter W Hogg, “Equality as a Charter Value in Constitutional Interpretation” (2003) 20 Supreme Court Law Review 113; and Rosalind Dixon, “The Supreme Court of Canada, Charter Dialogue and Deference” (2009) 47 Osgoode Hall Law Journal 235. For a secondary source that specifically addresses Charter values in the context of contingencies in tort law, admittedly in the area of gender (as opposed to disability), see Elizabeth Adjin-Tettey “Replicating and Perpetuating Inequalities in Personal Injury Claims through Female-Specific Contingencies” (2004) 49 McGill Law Journal 309.
35. See, for example, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, 24 OR (3d) 865 (Cory J, for the majority); and Retail, Wholesale and Department Store Union, Local 558 v Pepsi- Cola Canada Beverages (West) Ltd, 2002 SCC 8, [2002] 1 SCR 156 [Retail].
36. See, for example, Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391.
39. To be clear, the suggestion made in this article is not that the government has advanced such a claim on the facts of Krangle. Rather, the argument is simply this. There is enough room in the law to deal with this situation in a way that is different (and, in my view, better) than the solution adopted by the Supreme Court of Canada. If there is a potential claim by the government, then, in my view, it is legitimate for the Court to ensure the proper division of damages between the plaintiffs. Whether the government decides to pursue its claim or not, the Court should take account of the government’s potential as a plaintiff in determining damages, in crafting a remedy for the actual plaintiffs before the Court—that is, the parents.
40. See Mark R Gillen, “An Introduction to Trusts” in Mark R Gillen and Faye Woodman, eds, The Law of Trusts: A Contextual Approach, 2nd edition (Toronto: Emond Montgomery, 2008) 3 at 6–7.
41. At least one province would allow its health plan to recover from the doctor for any medical costs resulting from his negligence. See Health Insurance Act, RSO 1990, c H 6, s 36.0.1(1).
42. Krangle, supranote 3 at para 7. As should be evident from the argument made in this article, I do not accept the Court’s position on this point.
43. Tobacco Damages and Health Care Costs Recovery Act, SBC 2000, c 30.
44. British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473.
45. Health Care Costs Recovery Act, SBC 2008, c 27.
46. Ibid at s 1 sub verbo “wrongdoer.”
47. See, for example, Barney Sneiderman, John C Irvine, and Philip H Osborne, Canadian Medical Law: An Introduction for Physicians, Nurses and Other Health Care Professionals, 3rd edition (Scarborough, ON: Thomson Carswell, 2003) at 216–17. See also Norberg v Wynrib, [1992] 2 SCR 226, 92 DLR (4th) 449 (per McLachlin J, for the minority) (as she then was), and Frame v Smith, [1987] 2 SCR 99 at 134–48, 42 DLR (4th) 81 (per Wilson J, dissenting, but not on this point, on fiduciary duty more generally) [Frame, cited to SCR].
48. See Hardman Group Ltd v Alexander, 2003 NSSC 59, 212 NSR (2d) 304 [Hardman]. See also Leonard I Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at 65–79, and in particular at 71, citing John D McCamus, “The Evolving Role of Fiduciary Obligation” in Meredith Lectures 1998–1999, The Continued Relevance of the Law of Obligations: Back to Basics (Montreal, QC: Yvon Blais, 2000) 171.
51. The Canada Health Act, RSC 1985, c C-6, mandates federal-provincial cost sharing of insured services. Provincial insurance schemes that cover all services provided by hospitals and medical practitioners receive a federal cash contribution of 50 percent of all insured services (ibid at ss 9–10). While seemingly broad, section 2 restricts insured services in a number of ways, including restricting cost sharing to those services that are medically required.
52. Some case law suggests that vulnerability is an absolute requirement for finding a fiduciary duty. See Lac Minerals Ltd, supranote 21 at 599–600 (per Sopinka J, dissenting but not on this point). However, later cases suggest that the repose of trust and confidence in one person by another, power, discretion, an express or implied undertaking by the fiduciary to protect the interests of the beneficiary, and the social utility of the relationship are really the hallmark of the fiduciary relationship. See Rotman, supranote 48 at 145–50. See also Hodgkinson v Simms, [1994] 3 SCR 377 at 406, 117 DLR (4th) 161 (LaForest J for the Court); Galambos v Perez, 2009 SCC 48 at paras 78–82, [2009] 3 SCR 247. The weight of subsequent case law seems approving of the earlier jurisprudence, and, in my view, the later cases are refinements of those principles earlier enunciated, rather than a rejection or wholesale change of those principles.
53. 2475813 Nova Scotia Ltd v Rodgers, 189 NSR (2d) 363 at para 60, 2001 NSCA 12 [Rodgers].
55. See Canson Enterprises Ltd v Boughton and Co, [1991] 3 SCR 534 at 544, 85 DLR (4th) 129 (per McLachlin J (as she then was), dissenting; Lamer CJ and L’Heureux-Dubé J, concurring). McLachlin J points out that commonalities are evident between the formulation of the Rodgers/Hardman test and Wilson J’s analysis in Frame, supranote 47.
58. One example of a government employee owing a fiduciary duty to the government can be found in Reading v The King, [1948] 2 KB 268 (Denning J (as he then was)), aff’d, [1949] 2 KB 232 (CA) (per Asquith LJ (as he then was) for the Court), aff’d [1951] AC 507 (Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey, and Lord Radcliffe). A British army sergeant used his uniform to smuggle illegal spirits. A significant sum of money was seized. The sergeant was found guilty of conduct to the detriment of good order and military discipline, confined, and eventually released. He then sought the return of the seized funds. Denning J rejected this decision, holding that the sergeant had earned a secret unentitled profit. Though he held that there was no fiduciary duty, his judgment focused on the “duty of good faith and loyalty” (which is often synonymous with fiduciary duty) and included a significant discussion of master and servant (in modern parlance, principal, and agent), a relationship to which fiduciary duty almost automatically applies. The appeal court agreed in the result, but said explicitly ([1949] 2 KB 232 at 236) that there was a fiduciary duty owed by the sergeant to the government. The appeal court held that the concept of fiduciary duty in a loose sense was applicable on these facts. The House of Lords delivered four separate judgments, all agreeing with the Court of Appeal, though disagreeing on some principles. They nonetheless did not take issue with the application of fiduciary principles.
59. See Lac Minerals Ltd, supranote 21 at 597 (per Sopinka J, dissenting as to the result of the case, but not on this point).
60. See Peoples Department Stores Inc (Trustee of) v Wise, 2004 SCC 68 at para 57, [2004] 3 SCR 461. The Court clearly limits this decision to the statutory fiduciary duty, retaining the possibility the common law may find others (and implicitly recognizing the possibility of multiple fiduciary duties owed by one person) where a director and president was held to owe a duty to his fellow directors at the same time as he owed a duty to the company. See also Hardman, supranote 48, where a director and president was held to owe a duty to his fellow directors at the same time as he owed a duty to the company.
61. In terms of the elements of negligence, see Osborne, supranote 8 at 25–7. If a duty of care is owed, the doctor did not meet the standard of care, causing a foreseeable loss.
62. M’Alister (or Donoghue) v Stevenson, [1932] AC 562 at 580, HL (Eng).
63. See the Canada Health Act, supranote 51 and accompanying text. Even many of the services not subject to federal-provincial cost sharing are covered by provincial health budget without federal assistance.
64. In terms of reasons to limit the scope of the duty, one could consider the issue of indeterminate liability. See, for example, Hercules Managements Ltd v Ernst and Young, [1997] 2 SCR 165, 146 DLR (4th) 577. In Cooper v Hobart, 2001 SCC 79 at para 30, [2001] 3 SCR 537, the Court set out three interrelated factors (foreseeability, proximity, and policy), which can limit a duty of care in such cases. On the facts of Krangle, supranote 3, one might consider a policy-based “floodgate” argument—a wave of exorbitantly large damage awards ignoring the Canadian welfare state’s existence. In circumstances such as these, however, the duty can be restricted so as to deal with this problem. For example, the use of the trust remedy can be restricted to the facts presented in a case such as Krangle, where the question is not one of quantum of damages but, rather, one in which the innocent party is likely to be out of pocket the amounts that would be compensated for by those damages. After all, the trust is an equitable remedy and need not be applied in every circumstance. The equitable nature of the remedy allows the Court to avoid applying the remedy where it would work an injustice. In my view, its application on the facts of Krangle would not work any injustice and may help to avoid an unjust windfall.
65. See Krangle (Guardian ad litem of) v Brisco, 2000 BCCA 147 at para 27, 76 BCLR (3d) 1 (Mackenzie JA, Hollinrake JA concurring) [Krangle CA] [emphasis added].
66. The Supreme Court of Canada overruled the appeal court on the basis that the parents had no entitlement to the damages that had been placed in trust by the Court. Therefore, the trust was simply moot on the facts (see Krangle, supranote 3 at para 44).
67. Pettkus v Becker, [1980] 2 SCR 834 at 848, 117 DLR (3d) 257 [Pettkus].
68. See Soulos v Korkontzilas, [1997] 2 SCR 217, 32 OR (3d) 716 (per McLachlin J (as she then was), for the majority) (LaForest, Gonthier, Cory and Major JJ, concurring), where the Court specifically affirmed Pettkus, supranote 67 (ibid at 230) and held that the constructive trust is available in cases of unjust enrichment and also in cases where allowing the holder of property to continue in possession would be an affront to the conscience of the court.
70. Watkins v Olafson, [1989] 2 SCR 750, 61 DLR (4th) 577 [Watkins, cited to SCR].
71. Watkins v Olafson (1987), 48 Man R (2d) 81 at 101–4, [1987] 5 WWR 193 (CA) (per Huband JA).
72. Watkins, supranote 70 at 764. The Manitoba legislature created such an option in 1993 (see the Manitoba Court of Queen’s Bench Act, CCSM, c C280, s 88, and The Court of Queen’s Bench and Consequential Amendments Act, SM 1993, c 19), after Manitoba Law Reform Commission, Periodic Payment of Damages (Winnipeg, MB: Queen’s Printer, 1987). The Ontario Courts of Justice Act, RSO 1990, c C43, s 116, also contains such an option. The Supreme Court Act, RSBC 1996, c 443, and Supreme Court Civil Rules, BC Reg 168/2009, do not appear to contain such a provision.
73. Ibid at 758–64.
74. A provincially managed highway had been involved. Later jurisprudence holds that in general a government does not owe a fiduciary duty to individual citizens. See Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at para 44, [2011] 2 SCR 261.
76. This is consistent with what is commonly referred to as the “social model” of disability. In the biomedical model of disability, disability is a pathology, it is personal, and it is a problem to be fixed or compensated for. A simple illustration may assist here. Homes are typically built with steps at the front entrance. Of course, they can be built with a no-step entry, by the grade of the land, or with a ramp. I am a person who uses an electric wheelchair for mobility. Does the problem of entering a house lie with me (in the personal pathology of my diagnosis of cerebral palsy) or with society (because society finds steps acceptable, when it should not do so, because this choice excludes people like me from full participation in society). The medical model would accept the former explanation, though it may choose to accommodate my needs as a matter of generosity. The social model would focus on the latter explanation. This is not a matter of blame, but perspective. If the matter is personal, the solution is usually personal as well. However, if the matter is societal, it is more properly the subject of a societal response. For a more detailed discussion, see, for example, Jerome E Bickenbach, Physical Disability and Social Policy (Toronto: University of Toronto Press, 1993) at 61–89, 135–79. For a fuller discussion of the historical evolution of these and other ideas, see, for example, Marcia H Rioux and Michael J Prince “The Canadian Political Landscape of Disability: Policy Perspectives, Social Status, Interest Groups and the Rights Movement” in Puttee, supranote 26 at 11.
78. This is a case described by the majority of the appeal court as “wrongful birth” (Krangle CA, supranote 65 at para 2). Many people (myself included) are uncomfortable with such claims, largely because the cause of action is predicated on the assertion by the parents that, had they known in advance of the disability with which their child was born, they would have chosen to terminate the pregnancy. This is problematic in the sense that the Court is essentially accepting that a reasonable parent would terminate a pregnancy on the basis of disability alone. One hopes that these claims are used as a way of securing funds that will provide for children, rather than as a demonstration that a child with a disability is less valued. For me, any discomfort posed by this is alleviated by the fact that in order to be able to make the claim, the child must be born, and thus by putting compensation in the hands of the parents, the law ensures the parents are financially able to care for the person with a disability. In the end, then, this cause of action serves the ultimate goal of providing a method by which care is provided to adults with disabilities.
