In Hemmings v. Padmore, the Supreme Court of Canada revisited the principles of factual causation and remoteness in negligence claims, emphasizing that establishing a breach of the standard of care does not necessarily establish liability. The decision provides important guidance on how these distinct inquiries should be applied, particularly in cases involving multiple defendants.
Background
The case arose from catastrophic injuries sustained by Sophia Hemmings during an emergency caesarean section. Following complications associated with the administration of general anesthesia, Ms. Hemmings suffered a cardiac arrest, resulting in severe and permanent brain damage.
Ms. Hemmings and her family commenced an action against several healthcare providers, including her treating obstetrician, Dr. Padmore, Dr. Peng and Dr. O’Brien, the obstetricians involved in her delivery, Dr. Jamensky, the attending anesthesiologist, and Scarborough Hospital. The claims against the hospital included vicarious liability for the negligence of Nurse San Juan, who had provided Ms. Hemmings with medical advice over the telephone ten days before her delivery, and direct liability for deficiencies in communicating her medical records.
At trial, the Court found Dr. Padmore, Dr. Jamensky and the hospital liable, apportioning damages equally among them. The trial judge found that Dr. Padmore failed to adequately advise Ms. Hemmings of the risks associated with her pregnancy and properly document a management plan, while Dr. Jamensky negligently converted her to general anesthesia without exhausting reasonable alternatives. The hospital was found liable for Nurse San Juan’s failure to review Ms. Hemmings’ records and recommend medical attention, as well as deficiencies in communicating her medical history.
The trial judge also found that Dr. O’Brien had breached the standard of care but was not liable, as her negligence had not caused the plaintiff’s injuries, which were also considered too remote. Dr. Peng was found not to have been negligent.
The Ontario Court of Appeal overturned the findings against Dr. Padmore and the hospital but upheld Dr. Jamensky’s liability. Both the plaintiffs and Dr. Jamensky appealed to the Supreme Court of Canada.
The Supreme Court’s Decision
In a divided decision, the Supreme Court dismissed both appeals, leaving Dr. Jamensky solely liable for Ms. Hemmings’ injuries. The Court clarified the distinct roles of factual causation and remoteness, emphasizing that each must be independently established.
Factual Causation: Would the Injury Have Occurred But for the Negligence?
The Court reaffirmed that factual causation is generally determined using the “but for” test. A plaintiff must establish, on a balance of probabilities, that the injury would not have occurred but for the defendant’s negligent conduct. While negligence need not be the sole cause of an injury, it must be a necessary cause.
Factual causation does not require scientific certainty and may be established through a common-sense assessment of the evidence. However, in complex cases involving multiple defendants, competing expert opinions or a significant passage of time between the negligence and injury, a more detailed counterfactual analysis may be necessary. This requires considering whether the injury would have occurred had the defendant complied with the standard of care.
Applying these principles, the lead reasons concluded that the trial judge erred in finding that Nurse San Juan’s negligence caused Ms. Hemmings’ injuries. Although the trial judge found that Ms. Hemmings would have received medical attention earlier had the nurse properly advised her, he failed to determine whether that intervention would have prevented her injuries.
The Court emphasized that an opportunity for earlier treatment was insufficient to establish factual causation. The trial judge had also incorrectly relied on whether the risk of injury was more than a far-fetched possibility, a consideration relevant to remoteness rather than factual causation. Instead, the plaintiffs were required to establish that Ms. Hemmings’ injuries would probably have been avoided had Nurse San Juan met the standard of care.
Remoteness: Was the Injury a Reasonably Foreseeable Consequence?
The Court then considered remoteness, and clarified that while factual causation asks whether the defendant’s negligence actually caused the injury, remoteness considers whether the resulting injury is sufficiently connected to the negligent conduct to justify imposing legal liability.
The lead reasons reaffirmed that remoteness requires a real risk of the type of injury suffered, rather than a mere possibility of harm. The risk must be one that a reasonable person in the defendant’s position would not dismiss as far-fetched and would take reasonable precautions to prevent.
The Court confirmed that the assessment considers both the probability and severity of potential harm, viewed from the defendant’s perspective at the time of the negligence. For professional defendants, the analysis considers the knowledge and expertise expected of a reasonable practitioner in their position.
The Court also emphasized that remoteness is rooted in corrective justice, which seeks to compensate for harm resulting from wrongful conduct rather than punish the wrongdoer. Accordingly, the inquiry is not simply about fairness or public policy, but whether the defendant created a reasonably foreseeable risk of the injury suffered.
Importantly, a defendant need not foresee the precise sequence of events leading to an injury. However, the type of injury must have been reasonably foreseeable.
In this case, the plaintiffs argued that it was sufficient for Dr. Padmore and Nurse San Juan to have foreseen a general risk of physical injury. The lead reasons rejected this characterization as overly broad, instead identifying the relevant injury as cardiac arrest and resulting brain damage arising from anesthetic complications. Defining the injury simply as physical harm would effectively expose defendants to liability for virtually any consequence of their negligence, undermining the limiting function of remoteness.
Applying this approach, the lead reasons identified an inconsistency in the trial judge’s findings. Although Dr. O’Brien, who attended Ms. Hemmings during delivery, was found not to have reasonably foreseen the anesthetic complications and cardiac arrest, those same injuries were considered foreseeable to Dr. Padmore and Nurse San Juan, who treated or advised Ms. Hemmings earlier.
The Court emphasized that the inconsistency was not simply about timing, but the information reasonably available to each healthcare provider. Dr. O’Brien had observed Ms. Hemmings’ condition during labour and had more information concerning her risk factors. The trial judge failed to explain how Dr. Padmore and Nurse San Juan could reasonably have foreseen injuries that Dr. O’Brien, with more information available, could not.
The Court also considered conflicting expert evidence regarding whether the increased risk of anesthetic complications in morbidly obese pregnant patients warranted specific counselling. Ultimately, the lead reasons concluded that the evidence was insufficient to establish that Ms. Hemmings’ injuries were reasonably foreseeable consequences of Dr. Padmore’s or Nurse San Juan’s negligence.
The Finding of Liability Against Dr. Jamensky
Unlike Dr. Padmore and Nurse San Juan, Dr. Jamensky was directly involved in administering the anesthesia immediately preceding Ms. Hemmings’ cardiac arrest.
The trial judge found that Dr. Jamensky had prematurely converted Ms. Hemmings to general anesthesia without exhausting reasonable alternatives, including allowing sufficient time for a sedative to take effect and for her sister to calm her. Although the trial judge also found Dr. Jamensky negligent in his intubation, the Court of Appeal overturned that finding due to insufficient evidentiary support.
Dr. Jamensky challenged the finding of factual causation, relying in part on the competing theory that Ms. Hemmings’ cardiac arrest resulted from an amniotic fluid embolism rather than anesthetic complications.
However, the Supreme Court upheld the trial judge’s findings, noting that he had considered and rejected the alternative theory and accepted evidence that further efforts to calm Ms. Hemmings would likely have permitted surgery to continue under regional anesthesia.
The Court emphasized that trial reasons must be assessed functionally and in the context of the evidence as a whole. Unlike Nurse San Juan’s conduct, Dr. Jamensky’s negligence was closely connected to the events immediately preceding the cardiac arrest. Accordingly, an express counterfactual analysis was unnecessary, and the finding of factual causation was entitled to deference.
A Divided Court: Competing Approaches to Remoteness
The decision produced three sets of reasons, reflecting disagreement over the application of factual causation and remoteness. Notably, all seven judges agreed that the claims against the hospital should be dismissed, although their reasoning differed.
Justice Martin, writing for three judges, would have restored liability against Dr. Padmore. She favoured an approach focused on whether the plaintiff’s injury represented the realization of the risk that made the defendant’s conduct negligent. In her view, Ms. Hemmings’ injuries fell within the pregnancy-related risks that Dr. Padmore’s professional obligations were intended to address. The fact that the precise mechanism of injury was rare or unpredictable did not render the injuries too remote.
Chief Justice Wagner agreed that Ms. Hemmings’ injuries were not too remote from Dr. Padmore’s negligence. However, he concluded that the trial judge had improperly conflated factual causation and remoteness, failing to determine whether Ms. Hemmings would have terminated her pregnancy had she received appropriate advice.
The Chief Justice also disagreed with upholding Dr. Jamensky’s liability. He emphasized that the relevant negligence was not the administration of general anesthesia itself, but the failure to exhaust reasonable alternatives before doing so. In his view, the trial judge failed to properly determine whether those alternatives would have avoided the need for general anesthesia.
Importantly, the Chief Justice did not conclude that Dr. Jamensky’s negligence was not a factual cause of the injuries, but rather that the trial judge had failed to properly establish that it was. He would therefore have set aside the finding of liability against Dr. Jamensky.
Key Takeaways
This decision reinforces that a finding of negligence does not automatically result in liability. Even where a defendant breaches the standard of care, the plaintiff must establish that the breach caused their injuries and that those injuries were reasonably foreseeable consequences of the defendant’s conduct.
For defendants and insurers, the decision highlights the importance of considering whether the plaintiff would have suffered the same injuries had the applicable standard of care been met. It also emphasizes that foreseeability must be assessed in relation to the particular type of injury suffered, rather than a generalized risk of harm.
Ultimately, this decision confirms that factual causation and remoteness remain distinct and potentially significant grounds upon which liability may be contested, particularly in multi-defendant litigation.
See Hemmings v. Padmore, 2026 SCC 34
