A new trial is granted for a medical malpractice case, addressing trial judge’s errors in jury instructions.


The appellant, Andrew March, fractured his left upper arm bone when he fell off his bicycle on July 6, 1986, when he was five years old. Dr. John Hyndman, the respondent, treated the appellant at the IWK Children’s Hospital (IWK), setting the broken bone and applying a plaster cast on his arm.

Following a diagnosis of compartment syndrome, the appellant underwent procedures at the IWK on July 10, July 16, and July 22, 1986.  On August 6, 1986, the appellant was released from the IWK to seek additional medical attention at the Hospital for Sick Children in Toronto, where he underwent more procedures.

Volkmann’s Ischemia, a disorder brought on by the obstruction of blood flow in the forearm, was ultimately determined to be the cause of his ailment. March’s left hand was permanently disfigured as a result of the illness.

March filed a lawsuit in February 2002 against Hyndman and the IWK, accusing both of failing to take reasonable care of him while he was a patient there and resulting in the deformation of his hand.  On January 4, 2010, a consent order was issued dismissing the lawsuit brought against the IWK.

On January 5, 2010, the judge and jury began deliberating on the issues of responsibility and damages in this case.  The jury was asked two issues regarding liability:

  1. In treating Andrew March, did Dr. John Hyndman breach the standard of care anticipated of a paediatric orthopaedic surgeon.
  2. If your response to Question 1 was yes, did Andrew March suffer harm as a result of Dr. Hyndman’s negligence?

The trial judge addressed the jury with his charge on January 20, 2010.  He explained to the jury that the preponderance of the evidence standard governs civil trials.  He rightly said that this meant that the burden-bearing side cannot prevail on this point unless the jury is persuaded that a disputed truth is “more probable than not.” 

The trial judge instructed the jury to decide whether Hyndman violated the standard of care and whether the violation resulted in the damage that was alleged. If the jury was “in a state of doubt” or wasn’t satisfied on a balance of probabilities, they were instructed to answer “No” to both the question of the standard of care and the cause. The jury then answered “No”.

Nova Scotia Court of Appeal

Andrew March appealed the jury’s verdict, alleging that the trial judge erred in his instructions to the jury. The Nova Scotia Court of Appeal allowed the appeal and determined the trial judge had erred in his instructions and that the jury was flawed due to the possible interpretations of the judge’s instructions. 

The jury charge was flawed because it either 

(a) established two standards of proof—one based on a balance of probability and the other being in a state of uncertainty—or 

(b) linked the former with being in a “state of doubt” 

The Court found that a substantial error had occurred and a new trial was the appropriate course of action when jury instructions on the burden of proof contain ambiguous errors that seriously increased the risk that the jury would not understand the correct legal standards to use in making their decision as determined in Lachman v. Senger.

The trial judge’s instruction to the jury regarding the burden of proof was unclear and had the potential to result in a serious error or injustice. The appeal was upheld, and the case was sent back to the Supreme Court for a new trial.

Read the full case here.

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From CanLII