Ross v. Reopel

(Comment, per Duff CJ., Davis, Kerwin and Hudson JJ., as to the proper application of the rule ree ipsa loquitur. The rule is a special case within the broader doctrine that courts aot and are OF entitled to act upon the weight of the balance of probabilities). S;. (2) Defendants were liable in law for damages for the nurse's negligence. Per Duff CJ., Davis, Kerwin and Hudson JJ.: Upon the facts and circum. stances of this case, the nurse was, at the time she committed the negligent act, acting as the agent or servant of the hospital within the ordinary scope of her employment.

There was nothing in the evidence to take her, as between the hospital and herself, out of this relationship during the time she was administering the particular treatment to plaintiff.

Review and discussion of cases, and of the rule stated by Kennedy LJ. in Hillyer's case, [1909] 2 K.B. 820, at 829. However useful that rule may be in some circumstances as an element to be considered, it is a safer practice, in order to determine the character of a nurse's employment at the time of a negligent act, to focus attention upon the question whether in point of fact the nurse, during the period of time in which she was engaged on the particular work in which the negligent act occurred, was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself. It is better to approach the solution of the problem in each case by applying primarily the test of the relation of master and servant or of principal and agent to that particular work. There may be cases where the particular work upon which a nurse may for the time being be engaged is of such a highly professional and skilful nature and calling for such special training and knowledge in the treatment of disease that other considerations would arise; but the present case is not such a case.

Per Crocket J.: There was ample evidence to warrant the finding at trial that plaintiffs injuries were caused by the negligence of the nurse in administering the treatment while acting in the course of her employment as defendants' servant.

APPEAL by the defendants from the judgment of the Court of Appeal for Ontario (1) dismissing their appeal from the judgment of Hope J. at trial, holding that the defendants were liable to the plaintiff in damages (in the sum of $3,056.60) for injuries alleged by the plaintiff to have been caused to him by negligence of a nurse in her administration of a diathermic treatment to him while he was a patient in the defendants' hospital.

(1) [1937] O.R. 512; [1937] 2 DL.R. 121.