B.C. Supreme Court Law of Battery - The Statement of Claim
Justice Blair said:
[24] Mr. Postnikoff in his submissions alleged that Dr. Morrow committed the tort of battery against him during the course of the surgical procedure. Mr. Postnikoff did not plead either res ipsa loquitor or battery in his statement of claim, omissions which precludes submissions on those grounds... Blair, J. BLAIR J.
The Truth:
What had been prior Canadian law that permitted the amending of the statement of claim to include the word "battery" was withheld by Justice Blair. The law of "battery" was before Justice Blair and appeared within the plaintiff book of authorities. The past law appeared to say although the specific word "battery" never appeared within the Statement of Claim, the element of "battery" required to be properly plead, such as the wrongful injection by Dr. Morrow.
The B.C. Court of Appeal would not permit amending the "Statement of Claim" to include the word "battery", although in submissions the fact of the wrongful injection and law of battery was before that court. Fraud, bias and a total lack of credibility is claimed. Both law and evidence was withheld by Justice Blair in order to favor both Drs.' White and Morrow.
Superme Court Justice Richard Blair is Not Required to Explain.
The Plaintiff's Statement of Claim included the following:
16. The Defendant, Dr. Donald Ray Morrow, was negligent in performing the said surgery, particulars of which include the following:
a. failing to properly supervise and attend to the operation;
b. failing to perform the surgery in a competent manner;
c. failing to inject the local anesthetic properly;
d. failing to supervise his assistants, the employees and/or agents of the Defendant, Kelowna and
District Hospital Society;
e. failing to provide the Plaintiff with any or all the information necessary for the Plaintiff to give informed consent to the surgery;
f. failing to advise the Plaintiff of the risks associated with the surgery, including, sperm granuloma, scrotal haematoma, epididymitis, infection, bleeding, sexual disfunction, allergic reactions or neuroma.
g. failing to take proper steps to ensure that the Plaintiff was a proper candidate for the procedure;
h. failing to advise the Plaintiff of the risk of long term adverse side effects associated with the surgery;
i. failing to follow-up the surgery to ensure that it had been performed properly.
The Law of Battery and The Statement of Claim
Book of Authorities - “The Law of Battery absolutely WAS Before Justice Blair.”
Included the Following:
Allen et al. v. New Mount Sianai Hospital et al
11 C.C.L.T. pp299 The Statement of Claim in the present case, while it nowhere used the word "battery", sufficiently alleged all the material facts germane to the cause of action in battery, as well as negligence. Accordingly, her action should not be rejected upon issues of pleadings.
11 C.C.L.T. pp310 I do not think that the state of the statement of claim in this case forecloses reliance on battery theory by the plaintiff's council. Although the plaintiff nowhere uses the word "battery" in the statement of claim, it is not necessary to do so. All that is required by R. 143 is a concise statement of the material facts on which the plaintiff relies. The legal theories are not normally required elements of a pleading.
11 C.C.L.T. pp306 The administration of an anesthetic is a surgical operation. To do so would constitute a battery, unless the anesthetist is able to establish that his patient has consented to it. It is not up to the patient to prove that he refused; it is up to the doctor to demonstrate that the patient has consented.
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