Norberg v. Wynrib
Encyclopedia
Norberg v. Wynrib, [1992] 2 S.C.R. 226 is a leading Supreme Court of Canada
decision on the fiduciary duty between doctors and patients, and on the limits of consent as a defense
in sexual assault
.
Laura Norberg had severe pains in her jaw and frequent headaches in 1978. To remedy this problem, her sister offered her Fiorinal
. After the source of her pain, an abscessed tooth, was found and treated, her addiction to painkillers remained. After breaking her ankle in 1981, she found a doctor who would prescribe Fiorinal. After this doctor retired, she sought out another who would provide the drug. Starting in 1982, she began seeing Dr. Wynrib, an elderly physician, and he began giving Norberg Fiorinal under the pretext of an ankle injury. In exchange, Wynrib demanded sexual favours. She eventually brought an action against him for sexual assault.
There are two main issues in this case. First, the sexual assault falls under the tort
of battery
. Second, can the relationship between Norberg and Wynrib be characterized as fiduciary and therefore give rise to a fiduciary obligation? The British Columbia Court of Appeal
dismissed the case on the basis that she consented. The case was given leave to the Supreme Court. The Women's Legal Education and Action Fund
acted as an intervener in this case.
Writing for the majority, La Forest J.
found an award of punitive damages
on behalf of Norberg, but stops short of recognizing a fiduciary duty. The majority does not believe that sex is a power that can be transferred. Even though the majority discusses consent and its vitiation, they still treat the facts as an exchange between two parties.
Concurring in the result, McLachlin J.
, as she was then, characterized the duty differently:
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on the fiduciary duty between doctors and patients, and on the limits of consent as a defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
in sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
.
Laura Norberg had severe pains in her jaw and frequent headaches in 1978. To remedy this problem, her sister offered her Fiorinal
Fiorinal
See also: Fioricet, a preparation using paracetamol instead of aspirin.In the US, Fiorinal is a combination analgesic medication consisting of aspirin, the barbiturate butalbital and caffeine; in other countries the formulation may differ. For example, in Australia Fiorinal consists of...
. After the source of her pain, an abscessed tooth, was found and treated, her addiction to painkillers remained. After breaking her ankle in 1981, she found a doctor who would prescribe Fiorinal. After this doctor retired, she sought out another who would provide the drug. Starting in 1982, she began seeing Dr. Wynrib, an elderly physician, and he began giving Norberg Fiorinal under the pretext of an ankle injury. In exchange, Wynrib demanded sexual favours. She eventually brought an action against him for sexual assault.
There are two main issues in this case. First, the sexual assault falls under the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
. Second, can the relationship between Norberg and Wynrib be characterized as fiduciary and therefore give rise to a fiduciary obligation? The British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
dismissed the case on the basis that she consented. The case was given leave to the Supreme Court. The Women's Legal Education and Action Fund
Women's Legal Education and Action Fund
Women's Legal Education and Action Fund, referred to by the acronym LEAF, is a Canadian legal organization that performs legal research and intervenes in appellate and Supreme Court of Canada cases on women's issues...
acted as an intervener in this case.
Writing for the majority, La Forest J.
Gérard La Forest
Gérard Vincent La Forest, CC, QC, FRSC, LL.D was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997....
found an award of punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
on behalf of Norberg, but stops short of recognizing a fiduciary duty. The majority does not believe that sex is a power that can be transferred. Even though the majority discusses consent and its vitiation, they still treat the facts as an exchange between two parties.
Concurring in the result, McLachlin J.
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, as she was then, characterized the duty differently:
- The relationship of physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician's failure to fulfil his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence. In common with all members of society, the doctor owes the patient a duty not to touch him or her without his or her consent; if the doctor breaches this duty, he or she will have committed the tort of battery. But perhaps the most fundamental characteristic of the doctor-patient relationshipDoctor-patient relationshipThe doctor-patient relationship is central to the practice of healthcare and is essential for the delivery of high-quality health care in the diagnosis and treatment of disease. The doctor-patient relationship forms one of the foundations of contemporary medical ethics...
is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary.