Date: 19970522 Docket: C965349 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ANITA ENDEAN, AS REPRESENTATIVE PLAINTIFF PLAINTIFF AND: THE CANADIAN RED CROSS SOCIETY, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, AND THE ATTORNEY GENERAL OF CANADA DEFENDANTS AND: PRINCE GEORGE REGIONAL HOSPITAL, DR. BRIAN WILLIAM GALLIFORD, DR. ROBERT HART DYKES, DR. PETER HOUGHTON, DR. JOHN DOE, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA THIRD PARTIES REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE K. SMITH Counsel for the Plaintiff: J.J. Camp, Q.C. Sharon D. Matthews Bruce W. Lemer Counsel for the Defendant James H. MacMaster The Canadian Red Cross Society: Ward K. Branch Counsel for the Her Majesty D. Clifton Prowse the Queen in Right of the Keith L. Johnston Province of British Columbia: Counsel for The Attorney John R. Haig, Q.C. General of Canada and Her Majesty Laura J. Wanamaker the Queen in Right of Canada: Counsel for the Third Party John D. Ankenman Prince George Regional Hospital: Counsel for the Third Parties Scott W. Fleming Dr. William Galliford, Dr. Robert Peter M. Willcock Hart Dykes, and Dr. Peter Houghton: Place and Dates of Hearing: Vancouver, B.C. March 10, 11, 12, 13, and 14, 1997 [1] This is an application to certify this proceeding as a class action and to appoint the plaintiff as representative plaintiff pursuant to s. 2 of the Class Proceedings Act, S.B.C. 1995, c. 21. [2] The remedy sought is damages for injury, loss, and expense caused to persons allegedly infected with hepatitis C virus ("HCV") through transfusion in British Columbia of whole blood or blood products during the period commencing August 1, 1986, and ending July 1, 1990 (the "material time"). The Facts [3] The evidence discloses the following facts for purposes of this application. The plaintiff, Anita Endean, gave birth to a child on April 2, 1988, at the Prince George Regional Hospital. Following a post-partum hemorrhage that was surgically repaired by Dr. William Galliford, she was transfused with packed red blood cells, a blood product, that had been supplied by the defendant Canadian Red Cross Society ("CRC"). [4] After her discharge from hospital, Ms. Endean suffered from flu-like symptoms, including fatigue and frequent nausea and diarrhea. These symptoms are typical of persons infected with hepatitis C, an inflammation of the liver. [5] Ms. Endean's family physician was Dr. Peter Houghton, but it appears that she was attended by Dr. Robert Hart Dykes for the delivery of her child. According to Ms. Endean, Dr. Dykes attributed her symptoms to a combination of blood loss and stress. However, the symptoms continued unabated. [6] In 1994, Ms. Endean donated blood at a CRC clinic and, when her donation was tested, it was determined that she was infected with hepatitis C. As donations of whole blood and blood products are preserved intact and are not subsequently mixed with blood of other donors, any transfusion of whole blood or blood products has an identifiable, discrete donor. The CRC did a "traceback" through its records of the transfusion Ms. Endean had received, and found that some of the packed red blood cells had been donated by an HCV-positive donor. [7] HCV is transmitted "parenterally" - by direct contact of the recipient's bloodstream with virus-laden blood, fluid, or tissue of an infected person. Studies to date are not conclusive, but it appears that transfusion of blood and blood products is one of the more significant of several possible sources of infection. By far the highest rate of infection in Canada is reported in British Columbia. [8] Hepatitis has been subdivided into several alphabetic classifications according to its etiology. Hepatitis C can be acute or chronic, and can be symptomatic or asymptomatic in either form. Acute hepatitis C describes a condition lasting six months or less, followed by a clearing of the HCV from the victim's bloodstream. Hepatitis C lasting longer than six months is described as chronic. The evidence suggests that approximately 16% of those who receive an HCV-contaminated transfusion do not become infected at all, that approximately 20% of those infected have an acute episode of hepatitis C, and that 80% to 100% of those infected suffer chronic hepatitis C. [9] The signs and symptoms of hepatitis C include fever, headache, jaundice, nausea, vomiting, anorexia, and pain. Its most serious outcomes are cirrhosis (scarring of the liver) and heptacellular cancer (primary liver cancer), both of which can result in liver failure and death. There is evidence that 10% of those infected with HCV will develop cirrhosis in each decade after infection and that, of those contracting cirrhosis, approximately 5% will develop heptacellular cancer each year. [10] There is no known cure for hepatitis C, and the current conventional treatment - drug therapy using interferon - has limited long-term benefits and undesirable side effects. As well, it is very expensive. [11] Thus, although Ms. Endean's present symptoms can be characterized as mild, her future holds much uncertainty and anxiety. She alleges that the defendants are responsible for this state of affairs. She says the CRC was negligent in that it failed to take reasonable care to ensure that the transfusion she received would not cause her disease. In particular, she says that the CRC failed to implement certain "surrogate" tests and that it failed to seasonably implement the "HCV antibody test", either of which she says would have identified the HCV-infected blood products before she received them. She says, further, that the provincial and federal governments were negligent in failing to ensure the safety of the blood supply and, as well, that they are vicariously liable for the negligence of the CRC. [12] By recent amendment to her statement of claim, Ms. Endean has added a further claim against the provincial and federal Crowns. She alleges that their agent, the Canadian Blood Committee ("CBC"), intentionally destroyed relevant documentary evidence, thereby prejudicing her ability to prosecute this action. She claims that this conduct constitutes the tort of "spoliation" and that it calls for an award of punitive damages. [13] As can be seen from Ms. Endean's allegations, the system of blood collection and distribution in Canada during the material period is central to this action. [14] Throughout the material time, the CRC collected and processed donations of blood and blood products and delivered them free of charge to Canadian hospitals through seventeen permanent blood collection centres across Canada. During the collection phase of its operations, the CRC tested all blood donations for some viruses, but not for HCV. [15] The provincial Crown is charged by s. 5 of the Health Act, R.S.B.C. 1979, c. 161, with administration of health matters in the province and with doing all things necessary for the protection of public health, including the prevention, treatment, mitigation, and suppression of disease. Consequently, the Ministry of Health was directly involved in activities touching on this matter. During the material time, the Ministry, through its General Grants Program, provided funding to the CRC to assist it in its operations. Further, the B.C. Centre for Disease Control, a division of the Ministry, was involved in the investigation of viral hepatitis throughout the relevant period. [16] The federal Crown had relevant responsibilities as well. It regulated the collecting and processing of "blood derivatives", another description of blood products, throughout the material time. On September 1, 1989, by amendment to the Food and Drugs Act, R.S.C. 1985, c. F-27, it became responsible for the regulation of "blood and blood derivatives," and for licencing the CRC to collect and distribute whole blood and blood products. [17] The Canadian Blood Committee is an organization comprised of representatives of the federal government and of each of the provinces. It is responsible for developing and implementing policies for collecting, processing, distributing, and utilizing whole blood and blood products in Canada, and for supervising and directing programs instituted under policies formulated in that regard by the federal and provincial governments. It is, and was at the material time, responsible for providing funding annually to the CRC, which must submit budgets each year for that purpose. [18] To put Ms. Endean's claim in its proper context, it is necessary to consider the evolution of scientific knowledge relating to hepatitis. The disease is classified according to the virus that causes it. The hepatitis A and hepatitis B viruses were identified in the 1960's and 1970's. In the mid- 1970's, medical professionals introduced the term non-A non-B ("NANB") hepatitis to characterize an illness believed to be virally caused and transmitted by transfusion and for which tests had excluded other known etiologic agents. It was evident at that time that perhaps 90% of post-transfusion hepatitis resulted from NANB hepatitis virus. [19] On April 18, 1986, the American Association of Blood Banks announced that it would revise its Standards for Blood Banking to making testing for both "anti-HBc" and "ALT" mandatory as of August 1, 1986. These were described as nonspecific or "surrogate" tests because they did not test directly for antibodies of the viral agent causing NANB hepatitis, but for other antibodies that were believed to indicate its presence. The available studies suggested that approximately 50% to 65% of NANB-carrying donors could be identified by these tests. [20] The CBC and the CRC were aware of the American decision, but decided not to implement the surrogate tests in Canada. The evidence suggests that there was disagreement among scientists and among those involved in blood banking as to the validity and relevance of the studies supporting surrogate testing and that, for that reason and others, the CBC and the CRC concluded that further studies should be done before a commitment was made to what would have been an enormously expensive program. [21] The hepatitis C virus was identified in 1988. The bulk of what had been described as NANB hepatitis is hepatitis C, but other causative viral agents have since been discovered and the disease has been further sub-classified. Soon after discovery of HCV, the HCV antibody test was developed. Beginning in early December, 1989, it was evaluated in a pilot project in Edmonton, Alberta, and was then licenced for use in Canada. Since June 30, 1990, the HCV antibody test has been used to screen all whole blood and blood products donated in British Columbia, and has been effective in identifying HCV-positive donors. The Requirements of the Class Proceedings Act [22] The requirements to be met by Ms. Endean for the certification of a class are described in s. 4 of the Act. Section 4(1) reads as follows: 4. (1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if (a) the pleadings disclose a cause of action, (b) there is an identifiable class of 2 or more persons, (c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members, (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, and (e) there is a representative plaintiff who (i) would fairly and adequately represent the interests of the class (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. [23] The purpose of the equivalent Ontario statute was described by O'Brien J. of the Divisional Court of the Ontario Court (General Division) in Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453 at 461 as follows: It seems clear the three main objects of the class proceeding legislation are: (i) judicial economy, or the efficient handling of potentially complex cases of mass wrongs; (ii) improved access to the courts for those whose actions might not otherwise be asserted. This involved claims which might have merit but legal costs of proceeding were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pursue their legal remedies; (iii) modification of behaviour of actual or potential wrongdoers who might otherwise be tempted to ignore public obligations. Those objectives must be kept in mind in the consideration of whether Ms. Endean has satisfied the requirements of the Act. (a) Do the pleadings disclose a cause of action? [24] It is not disputed that the statement of claim sets out causes of action in negligence against the defendants. [25] There is no tort recognized in Canada as "spoliation". However, such a tort has been recognized in at least one of the United States and the intentional destruction of evidence has been held in other American jurisdictions to give rise to procedural sanctions. The possibility that the intentional destruction of relevant evidence may give rise to remedies in this jurisdiction has been recognized in Dawes v. Jajcaj (1995), 15 B.C.L.R. (3d) 240 (S.C.) and Kaiser v. Bufton's Flowers Ltd. (18 April 1995), Vancouver C908672 (B.C.S.C.). [26] I adopt as an accurate statement of the law the following passage from the reasons for judgment of Moldaver J. in Abdool, supra, at 469: The principles to be applied when considering whether pleadings support a legal cause of action are as follows: (a) All allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proved; (b) The defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiffs could not succeed; (c) The novelty of the cause of action will not militate against the plaintiffs; and (d) The statement of claim must be read as generously as possible, with a view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies. [27] In dealing with a novel claim on an application to strike out pleadings in Hunt v. Carey Canada Inc. (1990), 49 B.C.L.R. (2d) 273, the Supreme Court of Canada said, at 297: . . . where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [28] Applying those principles here, I conclude that the statement of claim discloses a cause of action for spoliation for purposes of this requirement of the Act. (b) Is there an identifiable class of two or more persons? [29] The proposed class is described in the notice of motion as follows: All persons who received whole blood and blood products in British Columbia and who meet at least one of the following residency requirements: a. residents of British Columbia at the time the contaminated whole blood and blood products were transfused; or b. current residents of British Columbia who received contaminated whole blood and blood products in British Columbia. [30] Estimates of the number of persons infected with HCV by blood transfusion in British Columbia during the material time range from approximately three hundred to approximately three thousand. Ms. Endean's solicitor has been contacted already by twenty-five persons who claim to be within the class for which certification is sought. Thus, the numerosity requirement is met. [31] The CRC submitted, however, that the proposed class is too broad because: 1. it includes all persons who received HCV- contaminated blood during the material time even though some of those persons will not develop hepatitis C; 2. it includes some persons who received infected blood who have not and will not become HCV- positive; and 3. it includes some persons who were infected by HCV by means other than transfusion of contaminated blood. Counsel for the plaintiff concedes that the first two groups should not be included in the class, and the class must be modified accordingly. The description of the third group engages causation issues that would have to be resolved in each individual case after the resolution of the common issues. No modification of the class for these persons can or should be made at this stage. [32] As well, the proposed class contains persons who are non- residents of British Columbia. Section 6(2) of the Act provides: (2) A class that comprises persons resident in British Columbia and persons not resident in British Columbia must be divided into subclasses along those lines. Section 6(1) requires that there be a representative plaintiff for such a subclass. None is put forward here, so that component must be eliminated from the proposed class. [33] That some potential class members may not yet know that they are infected presents difficulties in the identification of class members, but these difficulties are not fatal to the application. To a large extent, the problem will be overcome by the "lookback" program recently instituted by the provincial government, which is designed to identify possible HCV carriers by finding all persons who received blood transfusions between 1985 and 1990 and advising them to participate in a government- sponsored testing initiative. The government will compile a data base of such blood recipients, thus making it possible to identify most class members. [34] Accordingly, with the modifications just described, there is an identifiable class of two or more persons as required by the Act. (c) Do the claims of the class members raise common issues? [35] The proper approach to the third statutory requirement engages the following principles. The question of whether individual issues predominate over common issues, which so permeates the American law on this subject, is expressly excluded as a relevant consideration by s. 4(1)(c) of the Act. Further, a common issue need not be dispositive of the litigation. A common issue is sufficient if it is an issue of fact or law common to all claims, and that its resolution in favour of the plaintiffs will advance the interests of the class, leaving individual issues to be litigated later in separate trials, if necessary: Harrington v. Dow Corning Corporation et al (1996), 22 B.C.L.R. (3d) 97 at 105, 110 (S.C.). As well, the court should not attempt to weigh the ultimate merits of the proposed common questions, but should merely ascertain whether they raise triable issues: Campbell v. Flexwatt Corporation (1996), 25 B.C.L.R. (3d) 329 at 343 (S.C.). [36] The plaintiff proposes eight common issues here. I will deal with them in the order they have been presented. 1. Is the disease known as Hepatitis C caused by a virus that can be transmitted through whole blood and blood products? [37] The CRC submits that it is unlikely that this issue will be contested, and suggests that the answer will be of no real value to class members. However, it is a material fact that all class members must prove, or fail in the result. It is therefore a common issue and its resolution in favour of the class of plaintiffs will advance their cases. Accordingly, it is appropriate for certification. 2. Did any or all of the defendants owe a duty of care to the class plaintiffs to exercise all reasonable care, skill and diligence to ensure that blood and blood products which the class plaintiffs received were not contaminated with the Hepatitis C virus? [38] The existence of a duty of care is denied in each of the statements of defence and it is therefore incumbent on the class to prove it. The question satisfies the test enunciated in Harrington, supra, and it is a proper common issue. 3. If so, did any or all of the defendants breach the duty of care owed? [39] Subsumed in the question of whether the defendants breached a duty of care to the class is the identification of the standard of care. The plaintiff says, first, that the standard of care at the beginning of and throughout the material time required the implementation of the surrogate tests. There is evidence from which such a standard of care could be inferred. Secondly, the plaintiff contends that the standard of care required the institution of the HCV antibody test in British Columbia in late 1989, as soon as it was licenced for use in Canada. Again, the evidence might support such a finding. As the surrogate tests were never used in British Columbia and the HCV antibody test was not used until March, 1990, these are triable issues. [40] The CRC argues that the standard of care would have been in flux throughout the material time due to the evolution of both the state of knowledge of HCV and of testing for it, and emphasized the complexities of proof of the standard at any given time. However, the plaintiff's allegations relate, in the case of the surrogate tests, to the whole material time and, in the case of the HCV antibody test, to only the last few months. Undoubtedly the defendants' state of knowledge changed during that time, but the occasions on which it changed materially should be readily identifiable and they will likely be few. If the defendants should ultimately establish a defence for part of the material time based on their then state of knowledge, that can be reflected in the answer to the common question: see Chace v. Crane Canada Inc. (1996), 26 B.C.L.R. (3d) 339 at 343 (S.C.). The possibility that the question will be answered differently for some members of the class does not diminish the commonality of the question. [41] Accordingly, this is a common issue, the answer to which could significantly advance the case of the class. 4. Are either or both of the Federal Crown or the Provincial Crown vicariously liable for the acts and omissions of the CRC or the CBC during the Material Time? [42] The CRC objects that the vicarious liability issue will not be relevant to the class members unless it is first determined that the CRC is liable, that the governments are not liable directly to the plaintiffs, and that the CRC is unable to pay the damages awarded. This argument does not meet the plaintiff's submission that this is a common issue. While the vicarious liability of the governments is not a material element of the cause of action, an answer favourable to the class would significantly advance them toward their ultimate goal, a recoverable judgment for damages. It is therefore certifiable as a common issue. 5. What was the efficacy of the following tests to eliminate whole blood and blood products infected with the Hepatitis C virus from the blood supply in British Columbia during the Material Time: (i) the ALT test; (ii) the anti-HBC test; (iii) a combination of the ALT test and the anti-HBC test; (iv) the Hepatitis C antibody test; and (v) combination of the ALT test and the anti-HBC test and the Hepatitis C antibody test? [43] The plaintiff submits that this question is common because the case of each member of the class will be advanced and controlled by the answers. That is because, if this litigation reaches the stage of assessment of causation in individual cases, it will be necessary for the court to know whether the use of one or more of these tests would have affected the likelihood in each case of the class member's contracting HCV. [44] The CRC responds that a general finding of the efficacy of the surrogate tests will not help to assess causation at the individual level, because the scientific studies suggest only that the tests were predictive for a percentage of cases. Thus, no individual class member will be able to say that the blood he or she received, if tested, would not have been contaminated. [45] However, proof of causation is not required to a certainty. The Supreme Court of Canada dealt with this issue in Snell v. Farrell, [1990] 2 S.C.R. 311 at 328, 330, where Sopinka J. said: Causation need not be determined by scientific precision. It is as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p.490: ... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory. . . . It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law. Accordingly, a finding of the degree of efficacy of the tests in question would permit findings on causation in individual cases. It follows that this is a proper common issue. [46] None of the defendants take the position that the proposed issues 6, 7, and 8 are not common issues. 6. Did the CBC, the Federal Crown and the Provincial Crown intentionally destroy relevant documents and evidence as alleged in paragraph 25 of the further amended statement of claim? [47] This is a common question and may be certified. 7. Do the actions of the CBC, the Federal Crown and the Provincial Crown justify an award of punitive damages against the Federal Crown and the Provincial Crown? [48] An award of punitive damages is founded on the conduct of the defendant, unrelated to its effect on the plaintiff. This is a proper common question: Chace, supra, at 347, Anderson v. Wilson, [1997] O.J. No. 548 at para. 45 (Ont. Ct. (Gen.Div.)). 8. If the actions of the CBC, the Federal Crown and the Provincial Crown justify an award of punitive damages against the Federal Crown and the Provincial Crown, what is the amount to be awarded? [49] This may be certified as a common issue: Chace, supra, at 347. (d) Would a class proceeding be the preferable procedure for the fair and efficient resolution of the common issues? [50] The Act sets out several factors for consideration on the issue of whether a class action would be the preferable procedure. They are described in s. 4(2) as follows: (2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including (a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members, (b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions, (c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings, (d) whether other means of resolving the claims are less practical or less efficient, and (e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. [51] Counsel for the CRC, in his very thorough submission, contended that a consideration of each of those factors weighs against certifying this proceeding as a class action. [52] First, he submits that the individual issues heavily predominate over the common issues. He identifies difficulties in the proof of causation; the assessment of comparative fault as between class members, defendants, and third parties; the assessment of individual damages; and the determination of the effect of limitation periods in individual cases. [53] He refers to a body of American case law to support his contention that mass tort actions, such as this one, are inappropriate for class proceedings because of their inherent complexities and their abundance of individual issues. However, those cases were decided in the context of Rule 23 of the U.S. Federal Rules of Civil Procedure, which expressly requires, as a condition of certification as a class action, a finding that the common issues predominate over questions affecting only individual members. That approach has been rejected in our statute, which reduces the question of predominance to one of several factors for consideration and, in s. 27, sets out procedures for the determination of individual issues. [54] In my view, the intention behind these provisions of the Act is to put more emphasis on the goal of access to justice than on that of judicial economy. That was the approach taken in Harrington, supra, where a class proceeding was certified despite the many unresolved, difficult, individual issues associated with establishing claims arising out of allegedly defective breast implants. Accordingly, the undoubted predominance of individual issues here is not in itself fatal to the application. [55] The comparative fault of the class members is more a theoretical than a real issue. Blood transfusions are given by medical professionals for medical reasons to persons whose health - and perhaps life - would be at risk without them. The possibility that a recipient of an infected transfusion was contributorily negligent is remote. [56] The comparative fault of third parties, including medical doctors and hospitals, is more problematic. Counsel for the CRC and the Third Parties argues that neither the assessment of comparative fault of third parties nor the allocation of fault between them and the defendants can be made without a re- hearing of the evidence of the defendants' fault in each case. Otherwise, they contend, the court would be left to compare findings of fault in each individual trial against an abstract finding of fault in the common issues trial, and would be unable to properly weigh respective culpability. Therefore, a re-hearing of the liability of the defendants would be necessary and would negate any judicial efficiency brought about by a class action. [57] As well, they say, third parties may wish to raise allegations of negligence against the defendants that were not pled by the plaintiff, and should not be precluded from doing so by the plaintiff's choice of issues. [58] However, the object of the Act is not to provide perfect justice, but to provide a "fair and efficient resolution" of the common issues. It is a remedial, procedural statute and should be interpreted liberally to give effect to its purpose. It sets out very flexible procedures and clothes the court with broad discretion to ensure that justice is done to all parties. As was said in Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 at 747 (Ont. Ct. (Gen. Div.)): Certification is a fluid, flexible procedural process. It is conditional, always subject to decertification. [59] The difficulties identified in respect to third parties are not insuperable, and can be accommodated by giving third parties leave to apply to participate in the trial of the common issues as they may be advised. Precedent for such an approach can be found in Campbell v. Flexwatt Corp. (20 Sept. 1996), Victoria 95 2895 (B.C.S.C.). It can be expected that the present third parties will competently protect the interests of any as yet unidentified third parties, as they are affected by all principal third-party issues. Further, there is no obstacle to third parties raising new allegations of negligence against the defendants in the individual actions. It may even be that, as the case develops, such issues might be tried as common issues but, in any event, this possibility should not preclude certification of the common issues raised by the plaintiff. [60] The suggested problems identified by counsel with respect to the assessment of damages can be accommodated within the flexible procedures made available by the Act. Issues involving the effect of pre-existing medical conditions and the assessment of future risks are dealt with routinely in this Court, and present no obstacles to a class action. The suggestion that some class members will not benefit from the trial of common issues because the size of their anticipated awards will not justify the expenditure necessary to prove causation and damages is likewise not determinative. It may be that this anticipated difficulty can be resolved by the trial of secondary common issues as the action evolves. In any event, it cannot be said at this point that the majority of class members will not benefit from a common-issues trial. [61] Counsel for the CRC suggested that there will be a trial of the limitations defence in virtually every individual case. However, the evidence of the evolving scientific knowledge of the existence of HCV and of the available tests for its presence in blood will be common for each class member. That will establish the starting point for the consideration of the postponement provisions of the Limitation Act, R.S.B.C. 1996, c. 266, and it seems unlikely at this stage that there will be significant differences in result as between members of the class. So far as third parties are concerned, the application of s. 8 of the Limitation Act will remove much if not all of the difficulty. [62] There is no doubt that a class action in this matter presents serious difficulties of management and of proof. However, the difficulties presented in Harrington, supra, seem no less difficult, yet a certification order was made. [63] The controlling consideration here is that the complexity and cost of establishing liability are such as to effectively preclude the large majority of class members from access to the court in individual actions. The likelihood that they will recover only modest damages if successful would militate against the expenditure necessary to prove their claims. The following remarks of McKenzie J. in Harrington, supra, at 113 are apposite here: Class proceedings will still remain the only practical and efficient means of resolution for [plaintiffs] whose claims have modest damage potential and for whom separate proceedings would not be feasible. Greater difficulties would be experienced in administering separate proceedings for modest claims unless those claims were simply not pursued at all, which would defeat the whole purpose of class proceedings. [64] Considering the factors set out in s. 4(2) of the Act individually and as a whole, a class action is the preferable procedure for the fair and efficient resolution of the common issues in this case. (3) Is Anita Endean an appropriate representative plaintiff? [65] The CRC submits that Ms. Endean is not an appropriate representative plaintiff because: 1. she cannot represent those members of the class who have suffered different injuries; 2. she is an employee of the Third Party Prince George Regional Hospital and has worked as a nurse with the Third Party Dr. Houghton and has made known her belief that they are not at fault for her condition; and 3. she has not advanced several claims that are conventional in such cases, namely, that the CRC, the doctors, and the hospital failed to warn of the risks associated with blood transfusions and failed seasonably to advise the plaintiffs of infection. [66] These objections go to the issue of Ms. Endean's adequacy as a representative plaintiff. It is not necessary that Ms. Endean suffer the same injuries as others in the class. That is simply a factor to be considered on the question of whether she will "fairly and adequately" represent the interests of the class, and it is sufficient if she suffers some same or similar injury. A useful description of "adequacy" is contained in the headnote of In re American Medical Systems, Inc. 75 F.3d 1069 (6th Cir. 1996) at 1072: There are two criteria for determining adequacy of representative party in a class action to protect the interests of the class: representative must have common interests with unnamed members of the class, and it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. [67] The qualifications of plaintiff's counsel are not disputed here. The commonality of interest required by s. 4(1)(e)(iii) relates only to the common issues, and there is no suggestion that Ms. Endean will not "vigorously prosecute" those. She is therefore an adequate representative plaintiff. [68] That is not to say that the issues raised by the CRC on this point are trivial. However, the theories of liability not pled by Ms. Endean would complicate the action and present further difficulties of proof. It may be that class members with very serious injuries and the prospect of large damage awards will want to opt out of the class and proceed with individual actions in which they can raise all possible theories of liability against all possible defendants, no matter the associated costs and difficulties of proof. That should not preclude a class action for the vast majority of claimants who have the potential for only modest awards and for whom individual actions are not feasible: see Harrington, supra, at 113. [69] Finally, the CRC takes issue with the adequacy of the plaintiff's plan for the proceeding and of the proposed notice. I am satisfied that the plan is sufficient at this stage and that the proposed notice is adequate. [70] The plaintiff asks for an order pursuant to s. 24 of the Act that the defendants be ordered to pay the costs of notifying the class members of the proceeding. Section 24(1) provides: (1) The court may make any order it considers appropriate as to the costs of any notice given under this Division, including an order apportioning costs among parties. In my view, that confers an unfettered discretion on the court to make whatever order will do justice in the circumstances. [71] Here, the evidence of Ms. Endean's financial circumstances makes clear that payment of the costs of giving notice to class members would impose a financial hardship upon her. As between the defendants, it is significant that the CRC is a non-profit, altruistic organization. On the other hand, while this is a private law action, it is fair to say that the precipitating events raise transcendent public health issues engaging the attention of the elected and executive branches of government. The "lookback" program of the provincial government is a recognition of that fact. As an incident of that initiative, the provincial government will have identified the best ways and means of communicating with persons affected by transfused HCV-infected blood and will be able to give notice more cheaply than could the plaintiff. In the circumstances, it is just and appropriate that the provincial government communicate the required notice to class members. The incremental cost of doing so as an addition to its own communications will be shared by the provincial and federal governments equally or in such proportions as they may agree upon. [72] In the result, the application is granted with the qualifications I have mentioned. [73] Counsel for the third parties ask for a ruling that the third parties will not be bound by the findings of fact on the common issues. However, to permit third parties to relitigate issues of fact would destroy the efficacy of the class proceeding. As I have already noted, third parties will be able to apply to participate to protect their interests if that is considered necessary, and the third party actions will be stayed until further order pursuant to s. 13 of the Act. "K.J. Smith, J."