Malinowski v. Schneider, (2010) 494 A.R. 201 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 09, 2010
• Citations: (2010), 494 A.R. 201 (QB);2010 ABQB 734

Malinowski v. Schneider (2010), 494 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.008

Ireneusz Eric Malinowski (plaintiff) v. Murray Schneider and Murray Schneider carrying on business under the firm name and style of Fort Chiropractic Centre (defendants)

(0403 01160; 2010 ABQB 734)

Indexed As: Malinowski v. Schneider

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

November 24, 2010.

Summary:

On February 25, 2002, Malinowski injured his lower back at his workplace. On February 26, he was unable to perform his duties. Work-site safety personnel took him to Dr. Schneider's chiropractic clinic. Malinowski signed an informed consent form. Dr. Schneider performed a chiropractic adjustment. On February 27, Malinowski's condition was unimproved. Dr. Schneider performed a second chiropractic adjustment. Later that day, Malinowski visited his family doctor. The following morning, Malinowski remained in bed taking painkillers. When he woke on March 1, he could not feel his legs. He was taken by ambulance to the hospital and was diagnosed with cauda equina syndrome (CES). A neurosurgeon performed emergency surgery. Other than one brief period, Malinowski had not worked since September 27, 2002. Malinowski's condition was permanent and no further improvement could be expected. He experienced periodic bladder and bowel incontinence; ongoing partial sexual dysfunction and lack of genital sensation; ongoing leg weakness and impaired sensory function in the leg and lower abdomen; chronic pain; lower back stiffness and spasms; ongoing difficulty with sitting, climbing, and bending; daily used painkillers and anti-inflammatory drugs. At issue was whether Dr. Schneider was liable for negligence and, if so, the amount of damages for which he was responsible.

The Alberta Court of Queen's Bench concluded that, while Malinowski signed an informed consent form on his February 26 visit to Dr. Schneider's office, and verbally authorized chiropractic treatment during the February 26 and 27 visits, those steps did not constitute informed consent. The chiropractic adjustments met the standard of care for a chiropractor adjusting an injured sacroiliac joint; however, that was not Malinowski's injury. He was injured at the L3-L4 intervertebral disc. Based on the medical and expert evidence, the injury was aggravated during either or both the February 26 and 27 chiropractic adjustments, which led to the development of the CES. Accordingly, Dr. Schneider caused Malinowski's CES and resulting injuries. The court awarded non-pecuniary damages of $158,000; past and future income losses; past loss of housekeeping capacity of $38,130 between June 1, 2002 and December 31, 2006, and $96.54 per month between January 1, 2007 and the trial; future loss of housekeeping capacity; future cost of care costs; and workers' compensation costs of $126,500.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The defendant caused the plaintiff's cauda equina syndrome and resulting injuries - His condition was permanent and no further improvement could be expected - Periodic bladder and bowel incontinence - Ongoing partial sexual dysfunction and lack of genital sensation - Ongoing leg weakness and impaired sensory function in the leg and lower abdomen - Chronic pain condition, lower back stiffness and spasms, ongoing difficulty with sitting, climbing, and bending - He daily used painkillers and anti-inflammatory drugs - The Alberta Court of Queen's Bench awarded the future cost of care costs for the following items - Medication annual costs for Oxycontin, APO Napro NA, and Lorazepam (a lump sum of $16,711 for Viagra was excluded as the plaintiff did not provide documentary evidence to verify the damages claimed); adult diapers; swimming passes to use a community swimming pool for exercise and rehabilitative procedures; grab bars and a reacher to assist him in accessing objects; a back belt that required replacement every five years - The court excluded damages to allow purchase of a hot tub and maintenance costs for that device, as the plaintiff had access to a hot tub at his community swimming pool - See paragraphs 365 to 372.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - The defendant, a chiropractor, caused the plaintiff's cauda equina syndrome (CES) and resulting injuries - His condition was permanent and no further improvement could be expected - Periodic bladder and bowel incontinence - Ongoing partial sexual dysfunction - Ongoing leg weakness and impaired sensory function in the leg and lower abdomen - Chronic pain condition, lower back stiffness and spasms, ongoing difficulty with sitting, climbing, and bending - He daily used painkillers and anti-inflammatory drugs - The plaintiff sought a non-pecuniary damages award of $250,000 - The parties took the approach that the plaintiff's non-pecuniary damages could best be determined by comparison with awards to other persons who had received pain and suffering damages following a CES injury - The Alberta Court of Queen's Bench awarded non-pecuniary damages of $158,000, the low-end of the spectrum suggested by the cases - The plaintiff's ongoing dysfunction fell closer to the lower end of the CES effects - He had experienced fewer ongoing deleterious effects than many of the other persons who had received damages for CES injuries - See paragraphs 338 to 343.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The defendant, a chiropractor, alleged that the plaintiff failed to take steps to mitigate the damages caused by the defendant's negligence - Specifically, failure to follow medical advice, failure to undergo certain rehabilitation treatments, his excessive alcohol consumption, and his failure to re-train or take employment opportunities - The Alberta Court of Queen's Bench disagreed - The combination of the plaintiff's intellectual abilities and aptitudes, coupled with his post-injury condition, meant that he was essentially unemployable - Emergence of the plaintiff's cauda equina syndrome and the ongoing, permanent symptoms it caused, meant that the plaintiff was never going to work again, no matter his efforts to rehabilitate or re-educate - His post-injury conduct was therefore irrelevant for the question of mitigation - See paragraphs 333 to 337.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - [See Damages - Topic 1011 ].

Damages - Topic 1435

Special damages - Cost of housekeeping services - [See Damages - Topic 1536 ].

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of housekeeping capacity - Post-injury, the plaintiff was no longer employable - He sought damages to compensate for loss of his housekeeping capacity (pretrial - $48,526; future - $157,905) - He indicated that he did not complete any household work between the date of the injury (2002) and early 2007 - His expert (Chilton) noted that he took much longer than normal to perform his current household tasks and presumed a 50% reduction in capacity starting in 2007 - The Alberta Court of Queen's Bench stated that that was not the appropriate test - "Rather the Court calculates the cost to replace household labour previously provided by the injured person ... [T]he relevant variable is a 'loss of capacity'" - The otherwise unoccupied plaintiff had the entire day available to engage in household tasks at a tempo appropriate to his condition - As such, compensation for the extra time required to complete household tasks was subsumed in the plaintiff's non-pecuniary damages claim - The court agreed with the defendant that $96.54 per month, which was what workers' compensation paid him for necessary services, was adequate to cover any residual loss of housekeeping services between January 1, 2007 and the trial - The loss of housekeeping services between June 1, 2002 and December 31, 2006, led to damages of $38,130, based on Chilton's statistical data of one hour of housework per day, at a rate of $25 (derived from a city-specific survey), and reduced by 25% to reflect greater efficiency on the part of professional housekeepers, overhead and profit - See paragraphs 351 to 363.

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - The Alberta Court of Queen's Bench stated that "[a]n injured party is entitled to damages to compensate for reductions in the person's quality of life, which include pain and suffering, loss of amenities, and reductions in life expectancy, which are usually grouped as a 'composite award' for non-pecuniary damages" - See paragraph 338.

Damages - Topic 1545

General damages - General damages for personal injury - Aggravation of pre-existing condition - The plaintiff was injured at the L3-L4 intervertebral disc (the injury) - The Alberta Court of Queen's Bench concluded that the injury was aggravated during either or both the chiropractic adjustments by the defendant, which led to the development of the plaintiff's cauda equina syndrome (CES) injury in the days that followed - While the plaintiff's condition improved post-surgery, his ongoing lower body dysfunction and pain were permanent - The defendant argued that the plaintiff's ongoing back injury, psychological state and substance dependancies would have inevitably lead to future impairment ("crumbling skull" defence) - The Alberta Court of Queen's Bench rejected the defence - The medical experts whose testimony the court had accepted agreed that the prognosis for recovery from the back injury was good - The plaintiff would have probably returned to work after a three month period, had he not been injured by the defendant's negligence - Other than the injury, the plaintiff's back was essentially healthy - The defendant's expert erroneously attributed reported pain and dysfunction to "psycho social" causes when the CES injury instead was the cause of the plaintiff's ongoing pain symptoms - See paragraphs 288 to 300.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - The Alberta Court of Queen's Bench concluded that, if the plaintiff had not been injured by the defendant's negligence, he: (1) would have continued his employment as an electrician after a three month recovery period; (2) would have worked half of a full-time workload until his retirement, and (3) would not have undergone career advancement beyond the second year apprentice union electrician pay scale - The parties' expert economic reports disagreed on many grounds, and neither provided data that matched the court's precise conclusions - Accordingly, the court invited the parties to re-calculate the plaintiff's past and future income losses, and to assist that calculation, the court found that: (1) "fringe benefits" would be available to the plaintiff as he worked, for a total of 1.98% of his gross income; (2) future return rates were assumed to be 6% (a cautious investment strategy); (3) an average future wage growth of 0.5%; and (4) the plaintiff would have continued to work until his retirement at age 62 - See paragraphs 344 to 350.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - The plaintiff was employed for a considerable time as an electrician, albeit sporadically - Concerning the damages due to the plaintiff, the parties took very different views of the probable evolution of the plaintiff's career - The Alberta Court of Queen's Bench, in determining the plaintiff's past and future income losses, made the following findings - If the plaintiff had remained able to work, he would probably have continued to work less than full-time - The prior decade's record showed an individual who had a below average work ethic - The court also concluded that the plaintiff would have continued to be an electrician - However, his work ethic and lack of intellectual aptitude would have restricted him to apprentice-type work - He was paid a second year apprentice wage in the period immediately prior to his injury - It was probable that he would be paid at that level for the remainder of his career as an electrician - Further, the plaintiff was no longer employable "in any realistic sense" - He was unsuited to jobs that involved formal training and intellectual activities - His ongoing physical impairment denied him the ability to work in the professions for which he had an aptitude - See paragraphs 305 to 332.

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See first Damages - Topic 1550 ].

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - At issue was whether the defendant, a chiropractor, was liable for negligence in his treatment of the plaintiff (Malinowski) for a back injury - The defendant challenged the status of Dr. Kumar, a neurosurgeon, to give an expert opinion on whether the defendant had met the standard of care when he diagnosed and treated Malinowski - The defendant characterized chiropractic as a separate and distinct profession - The Alberta Court of Queen's Bench concluded that Dr. Kumar's evidence was admissible and relevant - "Dr. Kumar's testimony relates to a general standard of care for diagnosis and treatment of lower back injuries that is expected for any medical professional who diagnoses and treats that kind of injury ... Canadian appellate courts have determined that a specialist can provide evidence on the standard of care of a general practitioner" - The court concluded that chiropractic was a part of the larger "medical community" - Dr. Kumar was not unfamiliar with the manner in which the defendant had attempted to diagnose Malinowski's condition - He had the expertise to comment on what a non-specialist would and should know - See paragraphs 9 to 21.

Professional Occupations - Topic 4423

Chiropractors - Negligence - What constitutes - On February 26 and 27, 2002, the defendant, a chiropractor, met with the plaintiff, diagnosed his condition, and administered chiropractic treatments - All experts agreed that the primary diagnosis was incorrect - The essential question was whether the defendant met the required standard of care when he examined and diagnosed the plaintiff - The Alberta Court of Queen's Bench concluded that the defendant did not breach the standard of care for a chiropractor practicing in 2002 when he incorrectly concluded (February 26 diagnosis) that the plaintiff was more likely suffering from a sacroiliac joint injury, rather than a lumber intervertebral disc injury - However, he did breach the standard of care in not conducting a thorough re-evaluation of the plaintiff's unimproved or debilitated condition on February 27 - When faced by an unsuccessful initial treatment, the defendant was negligent in not re-examining the plaintiff to test his initial diagnosis - See paragraphs 149 to 162.

Professional Occupations - Topic 4423

Chiropractors - Negligence - What constitutes - On February 25, 2002, the plaintiff injured his lower back - On February 26 and 27, 2002, the defendant, a chiropractor, met with the plaintiff, diagnosed his condition, and administered chiropractic treatments - One issue was whether the defendant's choice of treatment was appropriate - The chief disputed point among the experts was whether the defendant met his standard of care or whether an alternative approach would have been preferable - The Alberta Court of Queen's Bench concluded that the defendant did not meet his standard of care by immediately proceeding to treat the plaintiff via chiropractic adjustment without first having recommended a period of rest in which the plaintiff's status might resolve - "The crucial point is that any recommendation to engage in spinal manipulation should be the result of careful calculation, not an automatic response based on an ideological bias" - See paragraphs 163 to 185.

Professional Occupations - Topic 4423

Chiropractors - Negligence - What constitutes - On February 25, 2002, Malinowski injured his lower back - Dr. Schneider, a chiropractor, concluded that Malinowski had a sacroiliac joint sprain and, accordingly, on February 26 and 27 conducted adjustments to those joints - The Alberta Court of Queen's Bench concluded that the adjustments met the standard of care for a chiropractor adjusting an injured sacroiliac joint; however, that was not Malinowski's injury - He was injured at the L3-L4 intervertebral disc (an uncommon disc injury) and was ultimately diagnosed with cauda equina syndrome (CES), resulting in significant loss - Based on the medical and expert evidence, the court concluded that, "on a balance of probabilities, the L3-L4 intervertebral disc injury was aggravated during either or both the February 26 and 27 chiropractic adjustments, with the effect of ejecting the entire nucleus pulposus during the February 27 chiropractic adjustment, and that ejection event then led to the development of the CES in the days that followed. Dr. Schneider caused Mr. Malinowski's CES and resulting injuries" - See paragraphs 191 to 281.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The plaintiff's condition worsened after chiropractor treatment by the defendant - The parties disputed the adequacy of the defendant's disclosure of risks from chiropractic treatment and of non-chiropractic alternatives - The contents of the informed consent form were the subject of considerable argument - The Alberta Court of Queen's Bench concluded that informed consent was not obtained - "A form that purports to provide informed consent ought to be assessed on its substance. Regardless of common practices within a profession, a medical treatment consent form that fails to discharge the requirements of informed consent does not prove informed consent was granted, even if it was signed" - See paragraph 68.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - At issue was whether a chiropractor (Dr. Schneider) was liable for negligence in his treatment of the plaintiff for a back injury - Eventually the plaintiff was diagnosed with cauda equina syndrome (CES), and emergency surgery was performed by a neurosurgeon - The Alberta Court of Queen's Bench concluded that the informed consent form signed by the plaintiff did not, on its own, discharge Dr. Schneider's duty to inform - "A health professional has an obligation to disclose any 'special or unusual risks', severely deleterious consequences of a therapy that are known though infrequent. Dr. Schneider acknowledged that permanent nerve injury, including paralysis, loss of sensation, and CES are rare but possible consequences of chiropractic adjustment. While intervertebral disc injury is a cause of these symptoms and is mentioned in the consent form, the consequences to the patient of treatment are what must be disclosed ... That is the critical information that is absent in this case" - See paragraph 69.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The parties disputed the adequacy of the defendant's disclosure of risks from chiropractic treatment and of non-chiropractic alternatives - The Alberta Court of Queen's Bench stated that a main concern regarding the plaintiff's reading and signing of the informed consent form arose out of the plaintiff's limited education and the fact that English was not his first language - "When faced with a patient whose personal characteristics might suggest there is a language barrier to his or her understanding of a consent form, the medical practitioner ought to take steps to ensure that language limitations have not prevented or limited the patient's understanding of the form that the patient has been asked to read and sign ... When faced with such a patient, medical practitioners should ensure that the patient understands the meaning of the words and expressions as well as the overall meaning of the document" - See paragraph 70.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The defendant, a chiropractor, treated the plaintiff with a chiropractic adjustment the day after his first visit to the defendant's office - The plaintiff's condition worsened - He was diagnosed with cauda equina syndrome (CES) and emergency surgery was performed by a neurosurgeon - At issue was whether the defendant was liable for negligence - His testimony revealed that in the pre-treatment consultation with the plaintiff, he explained that chiropractic adjustment could possibly result in disc and nerve injury, but that he did not explain the symptoms that might flow from those injuries, including that there was a rare possibility that the proposed treatment could cause irreparable harm to the nerves in his lower back resulting in CES - The Alberta Court of Queen's Bench concluded that the symptoms and consequences of CES were a special or unusual risk that ought to have been disclosed to the plaintiff prior to his adjustment - That did not occur and, on that basis, the court concluded that informed consent was not obtained - The manner in which the defendant described alternative non-chiropractic options such as surgery and pharmaceuticals was "alarmist" - "A medical professional should not be a salesman of a service" - In this sense, the defendant did not discharge his obligation to inform the plaintiff, impeding his right to choose an appropriate response to his injury - See paragraphs 71 to 78.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The Alberta Court of Queen's Bench stated that "[a] failure to inform and to obtain consent can lead to an award in tort only if a patient would not have agreed to the treatment if properly informed of the treatment, its risks, and alternatives. This rule relates to causation: one person only injures another when that person causes the other's injury. A health professional causes an injury when that health professional's information and advice changes the form of treatment that would be chosen by a patient" - The court applied the established legal test for the analysis, described as "whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed." - See paragraphs 80 and 81.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The plaintiff suffered a lower back injury at his workplace on February 25, 2002 - The following day, he was unable to perform his duties and was taken to the defendant's chiropractic clinic - His condition worsened after chiropractic treatments on February 26 and 27 - The Alberta Court of Queen's Bench concluded that the plaintiff would not have consented to or undergone chiropractic treatment had he been properly informed as to the risks - He had no prior exposure to chiropractic adjustment and usually relied on non-chiropractic medical techniques - When left to his own devices, he chose to rest and sleep - A failure by the defendant to inform the plaintiff of the risks and the existence of safe alternatives caused the plaintiff to consent to the treatments - Therefore, if the treatments caused his injuries, then the defendant was liable for the damages that resulted from his negligence in not obtaining informed consent - See paragraphs 83 to 89.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The plaintiff suffered a lower back injury at his workplace, a construction site - Work-site safety personnel sent him to see the defendant (Dr. Schneider), a chiropractor, who treated patients from the construction site as part of a contractual relationship with the plaintiff's employer - The plaintiff sued Dr. Schneider for negligence - The Alberta Court of Queen's Bench considered the implication of the relationship between the plaintiff's employer and Dr. Schneider on whether the plaintiff had been properly informed - The court's conclusion on this point reinforced its previous analysis and conclusion that Dr. Schneider did not meet the required standard in seeking to obtain informed consent - The plaintiff believed, rightly or wrongly, that his choice of action in seeking medical assistance was restricted, namely, he had to return to work and undertake treatment indicated by the on-site safety officers - "Dr. Schneider had a further obligation when dealing with an injured worker who had been referred by the employer's staff, to ensure that the injured person knew of non-chiropractic alternatives, of other chiropractors, and that the employee had every right to choose whatever treatment they wished, or not to receive treatment at all" - Dr. Schneider did not fulfil that obligation - See paragraphs 90 to 107.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - The plaintiff suffered a lower back injury at his workplace, a construction site - Work-site safety personnel sent him to see Dr. Schneider, a chiropractor, who treated patients from the construction site as part of a contractual relationship with the employer - The plaintiff sued Dr. Schneider for negligence - The Alberta Court of Queen's Bench, in discussing an employer's role in a patient's consent, rejected the argument that the plaintiff would have "followed orders" and undergone chiropractic treatment even if he had been properly informed of the risks - Even if the plaintiff's decision to accept chiropractic treatment had been the result of influence by his employer, that influence was irrelevant in evaluating whether or not the plaintiff would have accepted the chiropractic treatment recommended by Dr. Schneider - "One obligation of a health care professional is to evaluate whether their patient had been forced by a third party into a treatment which the patient did not want" - Dr. Schneider had not met that standard, "and he cannot shelter his negligence behind the actions of another tortfeasor" - See paragraphs 108 to 111.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See fifth and sixth Professional Occupations - Topic 4428 ].

Cases Noticed:

Olsen et al. v. Campbell Jones, [2009] A.R. Uned. 509; 11 Alta. L.R.(5th) 203; 2009 ABQB 371, refd to. [para. 11].

Gemoto v. Calgary Regional Health Authority et al., [2006] A.R. Uned. 644; 67 Alta. L.R.(4th) 226; 2006 ABQB 740, refd to. [para. 12].

Nattrass et al. v. Weber et al. (2008), 444 A.R. 303; 2008 ABQB 259, revd. in part (2010), 477 A.R. 292; 483 W.A.C. 292; 316 D.L.R.(4th) 666; 2010 ABCA 64, refd to. [para. 12].

Alakoozi Estate v. Hospital for Sick Children et al., [2002] O.T.C. 817; 117 A.C.W.S.(3d) 828 (Sup. Ct.), affd. (2004), 187 O.A.C. 187; 131 A.C.W.S.(3d) 762 (C.A.), refd to. [para. 12].

Barber v. Wilson et al. (1996), 8 O.T.C. 350; 64 A.C.W.S.(3d) 586 (Gen. Div.), refd to. [para. 13].

Nobel v. Bergstrom, [2001] B.C.T.C. 1135; 107 A.C.W.S.(3d) 1001; 2001 BCSC 1135, refd to. [para. 13].

Robinson v. Sisters of St. Joseph - see Robinson v. St. Joseph's General Hospital et al.

Robinson v. St. Joseph's General Hospital et al. (1999), 117 O.A.C. 331; 29 C.P.C.(4th) 184 (C.A.), refd to. [para. 15].

Briffett v. Gander and District Hospital Board et al. (1996), 137 Nfld. & P.E.I.R. 271; 428 A.P.R. 271; 29 C.C.L.T.(2d) 251 (Nfld. C.A.), refd to. [para. 15].

Quintal v. Datta and Skochylas (1988), 68 Sask.R. 104; 12 A.C.W.S.(3d) 139 (C.A.), refd to. [para. 15].

Lurtz v. Duchesne et al., [2003] O.T.C. 319; 122 A.C.W.S.(3d) 384 (Sup. Ct.), varied in part (2005), 194 O.A.C. 119; 136 A.C.W.S.(3d) 1055 (C.A.), refd to. [para. 17].

Penner v. Theobald (1962), 35 D.L.R.(2d) 700; 40 W.W.R.(N.S.) 216 (Man. C.A.), refd to. [para. 25].

Balcom v. MacDonald, [2000] B.C.T.C. 741; 99 A.C.W.S.(3d) 873; 2000 BCSC 1426, refd to. [para. 25].

Loffler et al. v. Cosman, [2010] A.R. Uned. 352; 2010 ABQB 177, refd to. [para. 25].

Dickson et al. v. Pinder et al. (2010), 489 A.R. 54; 2010 ABQB 269, refd to. [para. 25].

L.H. v. D.S., [2000] O.T.C. 413 (Sup. Ct.), refd to. [para. 26].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74; 82 D.L.R.(4th) 298 (C.A.), refd to. [para. 28].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161; 100 D.L.R.(4th) 609, refd to. [para. 28].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, appld. [para. 81]; refd to. [para. 29].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48, refd to. [para. 29].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361; 112 D.L.R.(3d) 67, refd to. [para. 33].

White v. Turner (1981), 120 D.L.R.(3d) 269 (Ont. S.C.), affd. (1982), 12 D.L.R.(4th) 319; 47 O.R.(2d) 764 (C.A.), refd to. [para. 35].

Zaiffdeen v. Chua et al. (2005), 380 A.R. 200; 363 W.A.C. 200; 2005 ABCA 290, refd to. [para. 35].

Zimmer v. Ringrose (1981), 28 A.R. 69; 124 D.L.R.(3d) 215 (C.A.), leave to appeal denied (1981), 37 N.R. 289; 28 A.R. 92 (S.C.C.), refd to. [para. 35].

Martin v. Findlay - see Martin et al. v. Capital Health Authority et al.

Martin et al. v. Capital Health Authority et al. (2008), 432 A.R. 165; 424 W.A.C. 165; 2008 ABCA 161, refd to. [para. 36].

Haughian v. Paine (1987), 55 Sask.R. 99; 37 D.L.R.(4th) 624 (C.A.), refd to. [para. 39].

Sicard et al. v. Sendziak (2008), 458 A.R. 145; 98 Alta. L.R.(4th) 44; 2008 ABQB 690, refd to. [para. 39].

Gallant v. Brake-Patten (2010), 292 Nfld. & P.E.I.R. 279; 902 A.P.R. 279; 2010 NLTD 1, refd to. [para. 39].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 40].

Bucknam v. Kostuik (1983), 44 O.R.(2d) 102; 3 D.L.R.(4th) 99 (H.C.), affd. in part (1986), 55 O.R.(2d) 187; 38 A.C.W.S.(2d) 158 (C.A.), refd to. [para. 40].

K.G. et al. v. Wong et al. (2008), 463 A.R. 289; 2008 ABQB 638, refd to. [para. 41].

Coughlin v. Kuntz (1987), 17 B.C.L.R.(2d) 365; 42 C.C.L.T. 142 (S.C.), affd. (1989), 42 B.C.L.R.(2d) 108; 2 C.C.L.T.(2d) 42 (C.A.), refd to. [para. 64].

Archibald v. Kuntz, [1994] B.C.T.C. Uned. 159 (S.C.), refd to. [para. 64].

Byciuk v. Hollingsworth et al. (2004), 358 A.R. 312; 2004 ABQB 370, refd to. [para. 64].

Tremblay v. McLauchlan et al. (2001), 155 B.C.A.C. 299; 254 W.A.C. 299; 91 B.C.L.R.(3d) 264; 2001 BCCA 444, refd to. [para. 64].

Kern v. Forest et al., [2010] B.C.T.C. Uned. 938; 2010 BCSC 938, refd to. [para. 66].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 102].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449, refd to. [para. 104].

Phillips v. Nagy - see Nagy v. Canada et al.

Nagy v. Canada et al. (2006), 397 A.R. 94; 384 W.A.C. 94; 272 D.L.R.(4th) 601; 2006 ABCA 227, refd to. [para. 104].

Admiralty Commissioners v. Ship Susquehanna, [1926] A.C. 655, refd to. [para. 282].

West and Son Ltd. v. Shephard, [1964] A.C. 326, refd to. [para. 282].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 282].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 288].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1, refd to. [para. 334].

Engel v. Kam-Ppelle Holdings Ltd. et al. - see Engel v. Salyn et al.

Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81; 99 D.L.R.(4th) 401, refd to. [para. 334].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 336].

Rogers v. Grypma et al. (2001), 304 A.R. 201; 2001 ABQB 958, refd to. [para. 339].

Aminullah v. Fouroughy et al., [2004] O.T.C. 495; 131 A.C.W.S.(3d) 656 (Sup. Ct.), refd to. [para. 339].

Boothman v. Poirier, 2005 CarswellQue 601 (S.C.), refd to. [para. 339].

Duguay v. LeBaud (1996), 177 N.B.R.(2d) 321; 449 A.P.R. 321; 61 A.C.W.S.(3d) 700 (T.D.), refd to. [para. 339].

Sambell v. Hudago Enterprises Ltd., 1990 CarswellOnt 2877 (Gen. Div.), refd to. [para. 339].

Skinner v. Royal Victoria Hospital, 1994 CarswellOnt 3397 (Gen. Div.), refd to. [para. 339].

Tat v. Ellis et al. (1999), 228 A.R. 263; 188 W.A.C. 263; 1999 ABCA 12, refd to. [para. 351].

Thibert et al. v. Zaw-Tun et al., [2006] A.R. Uned. 375; 64 Alta. L.R.(4th) 41; 2006 ABQB 423, refd to. [para. 352].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), leave to appeal denied [1992] 1 S.C.R. vii; 138 N.R. 404; 97 Sask.R. 240; 12 W.A.C. 240; 87 D.L.R.(4th) vii, refd to. [para. 357].

Park v. Heimbeckner et al., [2007] A.R. Uned. 583; 161 A.C.W.S.(3d) 75; 2007 ABQB 386, refd to. [para. 359].

Mahe et al. v. Boulianne, [2008] A.R. Uned. 747; 3 Alta. L.R.(5th) 89; 2008 ABQB 680, varied in part (2010), 474 A.R. 223; 479 W.A.C. 223; 2010 ABCA 32, refd to. [para. 359].

Russell v. Turcott, [2009] A.R. Uned. 184; 64 C.C.L.T.(3d) 11; 2009 ABQB 19, refd to. [para. 359].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), generally [para. 23].

Counsel:

Alan R. Gray and Shannon L. Matheson (Weir Bowen LLP), for the plaintiff;

Karin E. Buss and Richard Secord (Ackroyd LLP), for the defendants.

This action was heard on various dates between March 1 and April 9, 2010, before Shelley, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Edmonton, Alberta, on November 24, 2010.