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TYPES OF DAMAGES - General damages - Categories of - Loss of opportunity

Wednesday, March 21, 2018 @ 8:50 AM  

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Appeal by Horne, and cross-appeal by the Capital District Health Authority (CDHA), from the decision in Horne’s claim for damages for breach of contract and bad faith causing damage to her career as a cardiologist. Horne worked for a hospital operated by the CDHA, using data from patients of the hospital’s Heart Function Clinic. Horne and the Clinic’s director did not get along. In October 2002, the director convinced the CDHA to vary Horne’s hospital privileges to restrict her enrollment of Clinic patients, causing her research to founder. The CDHA considered the matter of Horne’s privileges over the next four years. In September 2006, its board of directors decided that the variation was not warranted, and restored Horne’s privileges to their status prior to October 2002. Horne successfully sued the CDHA for administrative bad faith, achieving an award of $1.4 million. Her contract claim was held to be unsustainable and was taken from the jury, and the judge ruled that the losses Horne sustained to her research career were encompassed by the damage award for loss of reputation, and were not a separate head of damages.

HELD: Appeal dismissed and cross-appeal allowed in part. The $1.4 million damage award was reduced to $800,000. The CDHA did not breach any contractual obligation in wrongfully varying Horne’s hospital privileges. The contracts that governed their relationship dealt with compensation and Horne’s obligation to perform research and other tasks. They did not impose an obligation on the CDHA to ensure that Horne had access to research subjects of the Clinic. Given that Horne lacked a contractual claim against the CDHA, she had no basis to argue that she was entitled to expectation damages for the CDHA’s non-performance of their contractual bargain. In instructing the jury on administrative bad faith, the judge correctly stated that bad faith required a finding of subjective inadvertence, and that the jury was required to decide whether the CDHA’s representatives acted recklessly for an improper motive, or in bad faith or with malice, toward Horne. The judge erred in failing to properly distinguish between claimable and unclaimable features of the impairment to Horne’s research career. The judge’s charge failed to caution against the jury’s use of evidence and comments pertaining to those portions of Horne’s claims that the judge rejected. The jury was never clearly instructed about the impact of the dismissal of the contractual claims on the damages sought of $8.2 million. The variation of Horne’s privileges contributed significantly to the decline and termination of three research projects, and the loss of grant funding. The four-year impediment to Horne’s ability to conduct meaningful research negatively impacted her professional development and would impact her ability to compete successfully for future grants and funding.

Horne v. Queen Elizabeth II Health Sciences Centre, [2018] N.S.J. No. 46, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.E. Fichaud and C.A. Bourgeois JJ.A., February 27, 2018. Digest No. TLD-March192018006