19781
COMMENTS – COMMENTAIRES
Harris v. Quain & Quain: A Comment
The recent decision of the Quebec Court of Appeal in Harris v.
Quain & Quain1 seems to represent a serious incursion into what
has commonly been referred to as “barrister immunity” and also
seems to reflect a growing tendency on the part of the courts to
hold lawyers to stricter account. As reported in The Gazette (Mont-
real),’ the legal firm of Quain & Quain was found negligent for
failing to “provide” and “present” 3 available medical evidence to
the Superior Court which heard the original damage claim of their
former client. The circumstances leading to that judgment are both
interesting and ironic.
In December 1966, Lloyd Harris, a Vancouver resident, was
seriously injured in an automobile accident while visiting Hull,
Quebec. Among other things, the man suffered head injuries and a
serious fracture of the left leg and hip. For more than six months
he was immobilized in a plaster cast and totally incapacitated for
about a year. Subsequently, a fifteen per cent permanent disability
was diagnosed.
The Ottawa-Hull legal firm of Quain & Quain acted as attorneys
of record in an action claiming damages for such injuries against
Raymond Ladouceur and the heirs of Celina Stickler. Judgment
was rendered in December 1968 by a Quebec Superior Court in Hull
and damages against Ladouceur were assessed at just over $8,000
to cover various disbursements, total temporary incapacity (for
six months), pain and suffering and loss of enjoyment of life.
Harris’s attorneys had also claimed damages under other heads
but at trial, the Honourable Mr Francois Chevalier found that no
proper evidence had been adduced to support such claims. The
decision of that Court was not appealed.
In 1969, however, Harris was sued by his former attorneys,
Quain & Quain, for fees owing as a result of their professional
services in the 1968 trial. It was with the plea to this action that
Harris made his cross-demand, alleging that the Quain firm had
failed to secure available evidence, thus resulting in no damages
for permanent partial disability and incorrect limitation of total
1 C.A.M., no 09-000297-747, July 12, 1977 (Owen, Lajoie, Crete JJ.A.).
2″Injured man sues lawyers, awarded $18,250″, The Gazette, Montreal, July
13, 1977, 3.
3 A form of those words used in the article, ibid.
McGILL LAW JOURNAL
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temporary incapacity to six months. Adjudicating on the cross-
demand, the trial Judge said:
If negligence there was, it would have been in failing to obtain a rogatory
commission to examine a Vancouver doctor on the question of permanent
partial disability. [This] Court is unable to say that a failure by a lawyer
to make use of the various proceedings which the Code of Civil Procedure
puts at his disposal constitutes on his part a neglect of duty4
However, the Quebec Court of Appeal disagreed with the ultim-
ate decision of the lower Court. LajoieJ., for the majority, found
that the lawyers for Harris had been negligent.’
In making that finding, the Honourable Mr Justice Lajoie took
considerable time to outline the various facts and circumstances
indicating the lawyers’ appreciation both of the nature of their
client’s injuries and of their own obligation to acquire appropriate
medical evidence to support their claim. For example, the Court
noted that at the first meeting between Quain and Harris, nearly
ten months after the car accident, Harris still complained of pain
as a result of head injuries and could walk only with the assistance
of crutches. It was also apparent to the Court that the Quain firm
had spent considerable time in the attempt to gather expert evid-
ence, insisting in correspondence with Harris’s lawyer in British
Columbia that medical reports of the attending physicians in Van-
couver be sent to them. Eventually, the Quain firm acquired such
reports and one in particular, prepared by Dr Harry Fahrni (an
orthopedist), stated clearly that it was highly unlikely Harris could
ever return to his former employment as a blacksmith. However,
such reports were never put before the Court and no comparable
evidence was ever secured for presentation. Instead, the appellant
himself (then some sixty years of age) testified that even though
two years had passed since the automobile accident, he was still
unable to work as a result of his injuries.
The majority in the Quebec Court of Appeal were not satisfied
with that endeavour. Lajoie J., with Crete J.A. concurring, held that
while it was not absolutely necessary to establish a rogatory com-
mission to function in British Columbia or to have a medical practi-
tioner come from Vancouver to testify at the Hull trial, the legal
firm could have and should have followed any one of a number
of procedures:
(i) moved to hold a discovery examination and inquire of the
if he admitted the length of the total
defendant (Ladouceur)
temporary incapacity and of the partial permanent disability;
4 That part of the trial judgment quoted by Lajoie J. in Harris v. Quain &
Quain, supra, note 1, 3.
G Supra, note 1, 5 per Lajoie J.
19781
COMMENTS – COMMENTAIRES
(ii) proceeded under the Civil Code and put the defendant on
notice to accept certain expert medical reports even though the
physicians themselves would not appear at trial;
(iii) made arrangements to call the doctor appointed by the
defendant to examine the plaintiff before trial; or
(iv) arranged for a medical examination of the plaintiff by an
orthopedic specialist in the Hull area just prior to trial.
Having noted the different arrangements which the lawyers
might have made before trial, the majority judgment then proceeded
to consider and summarize the medical and other data and assess
an additional sum in Harris’s favour to be paid by the Quain firm.
At this point Lajoie J. wrote:
Tenant compte de la durde probable de la vie lucrative de Harris h comp-
ter de la fin de son invalidild totale temporaire, de ses gains annuels,
des alias de la vie, aussi de ce que l’atteinte de 15% h son int6grit6 physi-
que se traduit par une invalidit6 bien plus considdrable, j’estime qu’une
somme de $15,000.00 l’indemnisera ad~quatement de la perte qu’il subit.0
Assuming the judgment in Harris is fully applicable in the com-
mon law provinces, one may ask what it does to the concept
of “barrister immunity” as enunciated in Rondel v. Worsley and
more recently in Ontario in Banks v. Reid.8 Or, more generally, can
the Harris case be seen as a growing tendency on the part of the
courts to be less reluctant to find negligence against a lawyer acting
in his professional capacity?
Barrister immunity
Some doubts and a considerable amount of concern have been
expressed about the doctrine of “barrister immunity” in jurisdic-
tions where the profession of attorney (or solicitor) and barrister
are united. Indeed, many would question the merits of barrister
6 Ibid., 13.
7 [1969] 1 A.C. 191 (H.L.).
8 [1975] 6 O.R. (2d) 404 (H.C.).
1) See, e.g., comments of Laskin in The British Tradition in Canadian Law
(1969), 26.
Some jurisdictions have refused to grant immunity to barrister functions.
In Victoria, Australia, for example, barristers are expressly liable. See their
Legal Profession Practice Act, Vict.Stat. 1958, vol.IV, no 6291, s.10(2) (Austl).
As for American authorities, see, e.g., O’Neill v. Gray (1929) 30 F. 2d 776
(2d Cir.).
10 Opinion expressed in public journals around the time that Rondel v.
in the courts shows almost unanimous
Worsley was being considered
opposition to immunity. See, e.g., “An anomalous privilege”, The Times,
London, Oct. 22, 1966 and “Usage and abusage”, The New Law Journal, Oct. 27,
1966.
McGILL LAW JOURNAL
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immunity”‘ even where, as in England, the profession is truly sep-
arate and distinct from that of a solicitor. 2 But certainly in England
no action will lie against an advocate in litigation (whether he is
a barrister or solicitor)'” so long as he has acted bona fide and is
not guilty of collusion or some other dishonest conduct. 4 Henry J.
in Banks v. Reid makes it clear that in his view “no action lies
against a [lawyer] based on his conduct of litigations for his
client”‘a5 even in jurisdictions where the functions of solicitor and
barrister are fused in one and the same person. It is submitted
here that the Harris case is largely in accord with that view although
it may not appear so on quick consideration.
First, there are a number of significant pronouncements through-
out the majority judgment indicating recognition of a division be-
tween the functions performed by a lawyer before trial and those
which he does in presenting the case to the court. For example, in
interpreting the claim made against the legal firm by Harris, Lajoie
T. states at one point:
[le] demandeur reconventionnel [Harris] … reproche aux intim6s [Quain]
de ne pas avoir pris les dispositions n~cessaires pour 6tablir… que lin-
validit6 partielle permanente … 6tait si importante….118
And later, when considering the arrangements that had been made
to present the appropriate evidence before him, Mr Justice Lajoie
states unequivocally, [i]l eut 6t6 facile … de procdder ainsi peu
avant l’audition de la premiere action…-.17 And yet elsewhere his
Lordship makes it clear that a lawyer is master of the way in which
he conducts a trial:
En principe, je suis d’accord avec les dnonc6s du premier juge que l’avocat
est maitre de conduire le proc~s de son client de la mani~re qu’il juge
la plus approprie ….. 18
If that last statement is to have any real meaning it must be
interpreted in such a way as to permit counsel, during the trial
1A barrister’s immunity was suggested in the early 17th century
in
Brook v. Montague (1605) CroJac. 90, 79 E.R. 77. And as Lord Reid said in
Rondel v. Worsley, supra, note 7, 227: “[F]or at least two hundred years
no judge or text writer has questioned the fact that barristers cannot be…
sued…”
12 In England the legal profession has -two separate branches each with
its own personnel, regulations, professional body and career structure.
13 In Rondel v. Worsley, supra, note 7, 244, per Lord Morris of Borth-y.Gest.
14 Ibid., 287, per Lord Pearson.
15 Supra, note 8, 419.
I’ Supra, note 1, 4, per Lajoie J. (emphasis added).
17Ibid., 10 (emphasis added).
18Ibid., 5.
19781
COMMENTS – COMMENTAIRES
process, to decide what to present and how to present it. Surely an
advocate, as master of conducting the trial, must have mastery over
more than just the order in which certain evidence must be pres-
ented to the court.
functions. The general
Thus, it is reasonable to assume from the various pronounce-
ments of Lajoie J. that he perceives a division between a lawyer’s
court-room and non-court-room
reason-
ing or result in Harris may clearly be seen in that light. Pointing
to the lawyers’ negligence, the majority judgment concentrates en-
tirely on what the legal firm could have and should have done in
preparation for trial. While the lawyers were not bound to utilize
the provisions of the Civil Code, they were obliged to take simple
and ordinary measures to acquire the appropriate evidence so that
the claim could be properly pursued.
In short, the Harris case recognizes two relatively distinct func-
tions for a lawyer –
those which are preparatory for trial and those
which are performed during the adjudicative process. This distinc-
tion is largely comparable to the barrister-solicitor division with
which common law lawyers are familiar. Thus, while in general a
lawyer must provide “des services diligents [et] attentifs”‘ 9 and
exercise a degree of competence comparable to that of the “aver-
age” practitioner, during the actual trial, “l’avocat est maitre de
conduire le procis de son client”.20
The facts and result in Harris may also be considered compatible
with common law decisions. In Kitchen v. Royal Air Forces Associa-
tion,”‘ for example, Lord Evershed M.R. found a firm of solicitors
negligent:
[T]he real gravamen of the case … is that they deliberately allowed
the time to run out without getting any instructions at all and knowing
that no expert evidence had been obtained [by them].22
In fact, it has long been held2 that one of the functions for which
a solicitor might be held negligent is improper organization of a
case for trial –
as summarized by Lord Reid in Rondel v. Worsley:
“[O]btaining the evidence which counsel needed, in taking proofs
from witnesses, securing their attendance and the like”. 4
19 Ibid.
20 Ibid.
21 [1958] 2 All E.R. 241 (CA.).
22 Ibid., 245 (emphasis added).
23 See, e.g., Reece v. Righy (1821) 4 B. & Aid. 202, 106 E.R. 912 and Hawkins
v. Harwood (1849) 4 Ex. 503, 154 E.R. 1312.
24 See supra, note 7, 265.
McGILL LAW JOURNAL
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However, as recognized by Lord Upjohn,” a solicitor is immune
from negligence if, for example, having secured the attendance of
witnesses, he later during the trial negligently fails to call one of
those witnesses.
The majority in Harris took considerable pains to outline the
facts and circumstances which should have alerted the appelant’s
lawyers of the permanent nature of their client’s injuries. Lajoie
J. then suggested a number of steps that the Quain firm should
have taken before trial to obtain the proper evidence to support
the claim for permanent disability. The firm’s negligence was
grounded on their failure to do so.
As stated by Lord Upjohn in Rondel v. Worsley:
[A] solicitor acting as advocate will only be immune from the conse-
quences of his negligence wilile he is actually acting as an advocate in
court on behalf of his client… .26
However, as noted by Hagarty J. in Leslie v. Ball,27 an attorney
acting as his own counsel, well aware of certain facts, might still
enjoy full immunity if, in the conduct of the case, he declined to
notice or produce evidence of those facts. 28 Nevertheless those re-
marks cannot be construed so as to relieve a solicitor of negligence
when he carries out functions which are normally performed by
a member of that profession or one who does that type of work.
Thus, if a solicitor is obliged to obtain evidence which is needed
by counsel and fails to do so, he cannot expect to escape liability
for this negligence by later acting as counsel himself. As has often
been said, a solicitor cannot shift from himself responsibility for
matters which the law presumes him to know.20
In Harris, the majority judgment focused on what the lawyers
should have done to prepare the case for trial. Lajoie J. based his
finding of negligence on the failure of the lawyers to do what they
themselves recognized as part of their obligation to properly prepare
the case. Significantly, the judgment of Owen J.A., dissenting,
focused almost entirely on the trial process. Accordingly, he found
no evidence of negligence on the part of the respondent lawyers.
Indeed, he was prepared to speculate that the small amount awarded
in damages might represent an error of judgment on the part of
the trial judge. At the same time, however, Mr Justice Owen did
concede that one of the factors accounting for the comparatively
285.
2Ibid.,
26 Ibid.
27 (1863) 22 U.C.Q.B. 512 (County Ct).
2 S Ibid., 516.
29 See Godefroy v. Dalton (1830) 6 Bing. 460, 469, 130 E.R. 1357, 1361.
19781
COMMENTS – COMMENTAIRES
309
small award may have been “a decision of the attorneys of record
not to produce medical reports”%0 Such a decision, he was sure,
did not constitute negligence for which the legal firm or the in-
dividual lawyers involved could be held responsible.
Barrister functions
In this author’s view, there has always been significant confusion
as to when and where a “lawyer’s” liability begins and ends or, to
use more traditional language, where solicitor functions end and
those of a barrister begin. Certainly, the Harris case does not offer
much direct explanation or guidance on that point, nor does it
consider whether a division in relation to solicitor-barrister func-
tions has any foundation in the history or development of the legal
profession. Nevertheless, there can be no doubt that the majority
judgment draws a line between what a lawyer does before trial (for
which he may be held liable in negligence) and the manner in
which he conducts a trial (over which he is master).
As suggested earlier, 0a such a division is quite compatible with
the solicitor-barrister division of liability discussed in Rondel v.
Worsley. For example, Lord Reid noted “that solicitors have the
same absolute privilege as counsel when conducting a case”.31 And
Lord Morris of Borth-y-Gest made it clear that it is desirable for
the public interest “… to retain an immunity relating only to the
limited field of the conduct and management of a case in court”.
In the same case Lord Upjohn revealed himself to be more
willing than the other Lords to widen a barn’ster’s immunity. At one
point in his judgment he suggested “tentatively”-” that a barrister’s
immunity must start before he enters the doors of the court to
conduct the case and extends to advising his client on the prospects
of success and on the evidence, to the conduct of the discovery
examination and settling pleadings 4
Speaking more than a century earlier, Tindal C.J. in Godefroy
v. Dalton noted that the cases up to that time established that a
solicitor was
30o Supra, note 1, 3, per Owen J., dissenting.
SOa Infra, p.308.
31 Supra, note 7, 232 (emphasis added).
32 Ibid., 248 (emphasis added).
33 Ibid., 285.
34 Ibid.
McGILL LAW JOURNAL
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…
liable for the consequence of ignorance or non-observance of the
rules of practice of this court; for the want of care in the preparation
of the cause for trial; or of attendance thereon with his witnesses…
n
The Godefroy case was also concerned with failure to secure
appropriate evidence for trial. It was alleged that an attorney had
been negligent in conducting the defence of his client by failing to
produce sufficient evidence to show that default judgment had
been signed against the defendant. To prove that point, the attorney
produced only the record book of the court’s prothonotary in which
was kept a list of the judgments by default signed in each term with
the date and the officer’s fee appearing beside each entry. The
learned Judge who tried the case held that such a book did not
constitute proper evidence of the allegations (regarding the default
judgment) and nonsuited the attorney’s client. But in the negligence
action against the attorney, Tindal C.J. held:
[T]his was not the ordinary case of a direct allegation of a judgment on
record, with a plea distinctly putting that judgment in issue; in which
case of ordinary and daily occurrence, a neglect in the attorney to provide
himself with regular proof of the judgment on record would have
classed itself within the description of gross negligence [for which he
would be liable].3 6
The issue of damages
The reasoning used in Harris to determine the damages to be
awarded against the Quain firm warrants serious consideration. It
will be recalled that both the trial Judge and the majority in the
Court of Appeal were prepared to grant a lawyer full discretion
over the manner in which he conducted a trial. Under such a rule,
it would seem that there can be no issue of negligence against a
lawyer if he decides not to use or call certain evidence during a
trial provided it has been made available or, as part of preparing
for trial, he took the necessary steps to secure it.
However, in order to assess the damages to be awarded against
the legal firm, the Court thought that it should examine the rami-
fications of the lawyers’ failure and consider what the damage
award might have been had the appropriate evidence been presented
to the trial Court. While this view seems both logical and fair for
the parties concerned, it is in fact rather difficult to reconcile with
the assertion of the Court that counsel is master of the manner in
which he conducts a trial; that is, if the court may assess damages
3 Supra, note 29, 468 (emphasis added).
36 Ibid.
1978]
COMMENTS – COMMENTAIRES
without regard to the possibility that such evidence may not have
been presented even though it had been secured, or the appropriate
arrangements for presentation to the court had been made.
Furthermore, it will also be recalled that the majority was
prepared to allow the lawyers to choose what steps they might take
or, rather, what “type” of appropriate evidence they might arrange
to have available for trial. But it would seem that a presentation
at trial of evidence obtained by a rogatory commission might
certainly carry more weight and influence with some courts than
would a written report prepared by a doctor who was neither be-
fore the court nor examined by any commission or tribunal. None-
theless, Lajoie J. felt that either one would have relieved the lawyers
of any professional negligence. The choice was for the lawyers to
make. If that is so, then it seems grossly unrealistic to assume that
the court of first instance hearing the damage action would have
reacted in the same way whether one “type” of appropriate evidence
or another were put before it.
In that regard, it is interesting to note that at trial, Chevalier J.
was not in the least impressed with Harris’s testimony that the
injuries he suffered rendered him permanently partially disabled.
On the other hand, Owen J.A. in the Court of Appeal felt that such
testimony before another court would have been seen as sufficient
to win further damages.
Another disturbing question is what evidence before the Court
of Appeal allowed it to assess damages at over $15,000.00 for partial
permanent incapacity. The Court of Appeal is not particularly ex-
plicit on what was before it. But one thing does seem fairly clear:
the Court rendered its decision on the basis of all the evidence that
it heard and saw relative to the particular heads of damages. If,
indeed, the lawyers had a choice as to the type of evidence they
might secure, the question remains as to how the Court of Appeal
could assert the existence of such discretion on the one hand and
then refuse to assess the damages in light of the choices it purported
to give the lawyers.
Interestingly, even with the same quantum and type of evidence
before it, the three member Court of Appeal could not agree on
the exact cause of the disability nor the award to be made. For
example, Owen J.A. noted that after the plaintiff’s left leg had been
broken a second time in a hunting accident, evidence of one doctor
indicated that there was a partial permanent incapacity of some
fifteen per cent. However, he was prepared to attribute only two
thirds of that incapacity to the automobile accident. Lajoie J., on
McGILL LAW JOURNAL
[Vol. 24
the other hand, given the same medical evidence, saw no causal
connection between the second injury and the fifteen per cent dis-
ability diagnosed.
It appears, therefore, that it is difficult for a court to assess the
medical data before it and arrive at the appropriate causal connec-
tions and award. If that is so, it is difficult t6 see how a court could
purport to know (many years later) that, had one of several kinds
of appropriate evidence been acquired by the lawyers before trial
and presented to the trial court, it would have decided in a certain
way.
In Harris, however, the trial Judge clearly asserted that “No
proper evidence has been introduced to substantiate … [inter alia
a] demand of compensation for permanent partial disability”.31
He said further:
Despite the sympathy it may have towards [the plaintiff] the Court …
cannot arbitrarily impose upon a Defendant a penalty … not justified
by the evidence at its disposal. 38
The majority in the Court of Appeal was duly impressed with
those remarks and seems to have used them as a point of departure
for predicting what the trial Judge would have done had the appro-
priate testimony been presented: “En retenant ce chiffre, je tiens
compte des remarques que fait le juge qui disposa du premier pro-
ces”. 39 It should be noted at this point, however, that the approach
taken by the Court of Appeal in Harris in assessing damages is not
totally incongruous with that taken by the common law courts in
assessing damages against a solicitor who, for example, fails to
commence an action within the required time period. Lord Evershed
M.R. in the Kitchen case explained:
If … it is plain that an action could have been brought, and, that if it
had been brought, it must have succeeded,
the answer is easy. The
damaged plaintiff would then recover the full amount of the damages
lost by the failure to bring the action originally.40
In such circumstances then, the court hearing the negligence
action conducts a trial within a trial and attempts to assess what,
in its view, the chances for success might have been. Essentially,
on the basis of the evidence known to it about the original cause of
action, the court is trying to assess what it or perhaps what the
“average” court might have decided had the action been brought
within the time period.
37 That passage quoted in Harris, supra, note 1, 2, per Lajoie J.
38 Ibid.
39 Ibid., 13 per Lajoie I.
40 Supra, note 21, 250.
1978]
COMMENTS – COMMENTAIRES
In Kitchen, each Judge recognized that there would have been
serious difficulties with the case before him. Sellers L.J. com-
mented:
Cases concerning electricity are often difficult and may develop sur-
prisingly in the course of a trial when all the factors are judicially in-
vestigated by examination, cross-examination and argument, and, there-
fore, until judgment, may leave a position of uncertainty in the minds
of the contesting parties. 41
Nevertheless, in that case the Court was unanimous in rejecting
the view that it would always be “all or nothing” for the plaintiff.
Instead, it approved of considering the evidence that might have
been brought at the original action (had it been commenced) and
assessing -damages on the basis of whether the action might have
succeeded or -failed absolutely, or whether there was at least “some
prospect of success”.2 Accordingly, they approved of the lower
Court decision to award a lesser amount (92000) instead of the
maximum (f3000) which was legally possible.43
The circumstances in Harris, of course, were somewhat different.
The action was commenced within the time period and the Court
of first instance candidly and explicitly expressed the view that,
had the proper evidence been put before it, it would have awarded
damages for permanent partial disability. It is probably largely be-
cause of that assertion that the Quebec Court of Appeal believed
it might accurately predict what the trial Court would have done
given the kind of evidence it had heard and seen, and which Cheva-
lier J. had deemed absolutely necessary to support certain claims.
Nevertheless, it has been suggested here that the majority in the
Court of Appeal should have worked some subtleties into its assess-
ment of damages.
For example, the Court should have considered, in keeping with
one of its own assertions, that in preparing the case for trial, the
lawyers were obliged only to take steps which would secure one or
another type of appropriate evidence. It should further have taken
into account that a trial court might place a different significance on
the different types of evidence secured and that the lawyers, for
good reason, might have decided not to present such evidence at
41 Ibid., 254.
42 Ibid., 252, per Parker LJ.
43 1n Kitchen, supra, note 21, there was no appeal against the original
award; i.e., the sum per se. Nevertheless, each judge expressed the view that
the plaintiff’s award of 2000 was generous or high. However, each approved
of the trial Judge’s decision to award less than the maximum (3000) possible
under the Fatal Accidents Acts, 1846-1908, 8 Edw. 7, c.7 (U.K.).
McGILL LAW JOURNAL
[Vol. 24
trial even though arrangements had been made beforehand. In
addition, as suggested in the dissent by Owen J.A., little regard was
given by the majority to other factors that might account for the
initial award –
for example, error of judgment on the part of the
trial Judge himself.
Summation and concluding remarks
As reported by the media, the professional negligence found
against Quain and Quain in the Harris case was grounded in the
lawyers’ failure to produce appropriate evidence at trial to prove
the permanent nature of their client’s injuries. That, it is submitted,
is an incorrect analysis of the case.
Virtually congruous with the solicitor-barrister dichotomy of
liability and immunity enunciated in Rondel v. Worsley, the profes-
sional negligence in Harris was attributed to the lawyers’ failure
to take ordinary and simple means before trial to secure the ap-
propriate medical evidence that might be presented to the Court.
The majority judgment makes it amply clear that had the lawyers
acquired any one of several “types” of appropriate evidence, they
would have been absolved of any negligence. Furthermore, the Court
of Appeal seems unanimous in the view that a lawyer is master of the
manner in which he conducts a trial.
In assessing damages against the lawyers, the majority in Harris
may have been better guided if they had carefully considered the
reasoning in Kitchen or paid greater heed to its own enunciations
of law. Unquestionably, the Quain firm was negligent in preparing
the case for trial. However, assuming the Court did not wish to
award (either expressly or implicitly) punitive or exemplary dam-
ages, it would have been correct to consider in some detail the
various factors which might have contributed to a trial court’s
decision to award less than the amount the Court of Appeal saw
as appropriate in light of the evidence brought to its attention. In
other words, while the additional sum awarded in Harris’s favour
may accurately have reflected what the injured party should have
been awarded to compensate him for his injuries, it does not seem
totally appropriate to require the legal firm to pay that sum, if,
apart from the lawyers’ negligence, there was a good chance that
such an amount of money would not have been awarded in any
event. To disregard the foibles and weaknesses of those who ad-
judicate and the choice and discretion a lawyer possesses in the
court-room and to attribute the original deficiency in the award
entirely to one factor is to be unnecessarily simplistic.
19783
COMMENTS – COMMENTAIRES
Nonetheless, while the Harris case seems to have certain weak-
nesses, it cannot be said that, as a result of them, it weakens the
fundamental discretion a lawyer has in performing his court-room
functions. While all do not agree with the policy considerations
enunciated in Rondel v. Worsley for establishing “barrister im-
munity”, more will surely agree that the circumstances and result
in Harris point as strongly as any other case to the difficulties
inherent in trying either to discern or trace the ramifications of
a lawyer’s negligence in his professional capacity.
Norman M. Fera*
* B.A. (Laur.), Teach.Lic. (Ont.), B.A., M.A. (Carleton), LL.B. (U.of 0.).
