The temporal element of informed consent.

1. Introduction The rules and standards of tort liability are typically stated at a high level of generality, one which makes no mention of specific activities or given groups of plaintiffs or defendants. The task of bringing those abstract rules to bear on the diverse behaviour to which tort law applies thus involves courts applying broad propositions to a wide range of particular occurrences. From time to time, however, legislatures have been persuaded to pass statutes singling out certain activities or persons for special treatment in tort actions. For instance, in Canada we have statutes which give beneficial treatment in some tort actions to certain favoured classes of defendants. These include farmers, (1) nuclear facilities, (2) anglers, (3) and government itself. (4) In addition, we have statutes which treat some defendants--tobacco manufacturers (5) and dog owners, (6) for example--more harshly than the general rules of tort would otherwise treat them. The articulation of special tort rules for particular classes of defendants is not limited to statutes. From time to time courts have been prepared to depart from the generality that typically characterizes the standards of private law. They have promulgated special liability rules for particular groups of defendants. In Canada, two such groups have most frequently come in for such treatment: the government and doctors. It is not difficult to understand why there might be distinctive tort rules for government defendants. The state's mission, obligations, structure and limitations set it apart from private actors. However, it is less easy to understand why the general rules of tort law--rules which apply to the other professions and to other private actors of a non-professional nature--should require modification before they can be applied to doctors. Nevertheless those rules have been modified for physician defendants. Moreover they have been altered in a manner that benefits defendant doctors. In ter Neuzen v. Korn (7) the Supreme Court of Canada held that, in the context of medical negligence, a defendant medical doctor who complied with standard practice could not, except in exceptional circumstances, be held to have fallen below the applicable standard of care. In Reibl v. Hughes (8) the Supreme Court articulated the distinction between negligence and battery so as to ensure that physicians who failed to gain informed consent to a procedure might be liable for the former cause of action, but not normally for the latter, more morally invidious one. Reibl also gave doctors, but no one else, the benefit of a special causation test. This distinctive rule for doctors was upheld by the Supreme Court in the 1997 case of Arndt v. Smith. (9) In Laferriere v. Lawson (10) the Supreme Court rejected a claim that the doctrine of loss of chance, which applies to certain actions in negligence, should apply to that claim for medical malpractice. And in its recent decision in Cottrelle v. Gerrard (11) the Ontario Court of Appeal confirmed the rule that loss of chance should not apply to medical malpractice claims. Recently, in Afshar v. Chester, (12) the House of Lords decided a case which articulated yet another special tort rule for doctors. The question considered in Afshar has been before the High Court of Australia (13) but has not yet been subjected to much consideration by Canadian courts. It easily could, however, and the goal of this note is to explain and critique Afshar with an eye to that decision's potential implications for Canadian law. Addressing that last matter may not be easy because, in contrast to the practice of the Supreme Court of Canada, which has viewed doctors as a peculiarly vulnerable class of defendants (14) deserving of special protection, the House of Lords decision in Afshar sets out an exceptional rule that treats defendant doctors less favourably than other, non-medical defendants would be treated. The ruling of the majority of the House of Lords in Afshar holds the defendant doctor liable in circumstances where an analogous non-medical doctor defendant would have been exonerated. …

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