Melnychuk v. Ronaghan et al., (1998) 224 A.R. 221 (QB)

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 1998
• Citations: (1998), 224 A.R. 221 (QB)

Melnychuk v. Ronaghan (1998), 224 A.R. 221 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MR.039

Taras Melnychuk (plaintiff) v. Don Ronaghan, Don Ronaghan carrying on business under the firm name and style of St. Paul Veterinary Clinic and St. Paul Veterinary Clinic, a division of Lac Sante Farms Ltd. and Lac Sante Farms Ltd. (defendants)

(Action No. 9303-04990)

Indexed As: Melnychuk v. Ronaghan et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

March 4, 1998.

Summary:

A veterinarian performed a caesarean section operation on a heifer. The heifer's owner was injured while assisting the veteri­narian. The owner sued the veterinarian for damages in negligence.

The Alberta Court of Queen's Bench allowed the action and awarded the owner $325,500 damages.

Damage Awards - Topic 490

Injury and death - General damage awards - Loss of profits - A farmer owned and operated a 320 acre farm and two rental properties - His wife was a joint owner of the farm and the rental properties - The farmer, who was also an electrician, owned and operated an electrical company which paid him an annual salary and bene­fits of $20,349 - The farmer was perma­nently disabled when the nerves in his right hand were cut by a scalpel while he was assist­ing a veterinarian - The farmer curtailed the farming operations to cattle and increased the herd from 70 to 100 head - Annual farm income had increased from $15,000 to $20,000 - The farmer sued the veterinarian for negligence - The Alberta Court of Queen's Bench awarded the farmer $325,500 (i.e., $143,500 pre-trial damages and $182,000 for loss of future income) - See paragraph 91.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Dam­age Awards - Topic 490 ].

Damage Awards - Topic 496

Injury and death - General damage awards - Loss of farm labour capacity - [See Dam­age Awards - Topic 490 ].

Damages - Topic 1549

General damages for personal injury - Impairment of earning capacity - A farmer and his wife owned and operated a 320 acre farm and two rental properties - The farmer was permanently disabled when his right hand was cut by a scalpel while assisting a veterinarian - The farmer cur­tailed the farming operations to cattle and increased the herd from 70 to 100 head - The farmer had to hire help to run the farm and carry out maintenance and repairs to the rental properties - The farmer sued the veteri­narian for damages in negligence - The veterinarian claimed that the dam­ages for loss of profits (including the cost of replacement labuor) regarding the farm and rental business should be reduced by 50% to reflect the joint ownership - The Alberta Court of Queen's Bench held that the award to compensate the farmer for the replacement labour should be divided by two to reflect the joint ownership - See paragraphs 68 to 90.

Damages - Topic 1550

General damages for personal injury - Prospective loss of wages or earnings - [See Damages - Topic 1549 ].

Damages - Topic 1550.1

General damages for personal injury - Pre-trial loss of wages or earnings - [See Dam­ages - Topic 1549 ].

Damages - Topic 1560

General damages for personal injury - Factors tending to reduce award - [See Damages - Topic 1549 ].

Damages - Topic 1569

General damages for personal injury - Business loss - [See Damages - Topic 1549 ].

Professional Occupations - Topic 2661

Veterinary surgeons - Liability of practi­tioners - Negligence - A farmer retained a veterinarian to extract a large dead calf from a young heifer - The veterinarian had to perform a caesarean section - The farmer assisted and acted under the veteri­narian's instructions - During part of the procedure, the veterinarian held the scalpel crossway in his mouth - The scalpel pen­etrated the farmer's right hand leaving him permanently disabled - The veterinarian had not explained the steps in the pro­cedure nor warned the farmer as to any risks, nor to take any precautions - The farmer sued the veterinarian in negligence for damages - The Alberta Court of Queen's Bench held that the veterinarian had breached his duty to warn the farmer to be very careful not to come into contact with the scalpel and awarded the farmer $325,500 damages.

Professional Occupations - Topic 2662

Veterinary surgeons - Liability of practi­tioners - Negligence - Standard of care - A farmer sued a veterinarian for an injury received while assisting the veterinarian - The veterinarian submitted that the pro­cedure used was accepted practice - The Alberta Court of Queen's Bench stated that "while conformity with common practice will generally exonerate Professionals of negligence, it is otherwise where the stan­dard practice is 'fraught with obvious risks' such that the ordinary reasonable person is capable of finding it negligent without the necessity of judging matters requiring expertise; ... Where there are obvious existing alternatives or precautions to an accepted or common practice, which any reasonable Professional or ordinary reasonable person would utilize in order to avoid a risk attendant to that practice, the failure to do so is negligent, even if it is prevailing practice among Professionals" - See paragraph 38.

Torts - Topic 16

Negligence - Standard of care - Where special skill or competence required - [See Professional Occupations - Topic 2662 ].

Torts - Topic 25

Negligence - Standard of care - Effect of customary trade practice - [See Pro­fessional Occupations - Topic 2662 ].

Cases Noticed:

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) 41, appld. [para. 68].

Scholten v. Reid, [1994] A.J. No. 1097 (Q.B.), dist. [para. 70].

Fobel v. Dean and MacDonald, [1991] 6 W.W.R. 408; 83 D.L.R.(4th) 385; 93 Sask.R. 103; 4 W.A.C. 103 (C.A.), leave to appeal refused (1992), 138 N.R. 404; 97 Sask.R. 240; 12 W.A.C. 24; 87 D.L.R.(4th) vii, consd. [para. 72].

McLaren v. Schwalbe, [1994] 4 W.W.R. 532; 148 A.R. 1 (Q.B.), consd. [para. 72].

Engel v. Salyn et al. (1988), 68 Sask.R. 312 (Q.B.), folld. [para. 88].

Hardy, Re; Poole v. Poole (1891), 3 Ch. Ch. 179 (Can.), refd to. [Appendix 1].

Beckett v. Newalls Insulation Co. and Lightfoot Refrigeration Co. (1953), 1 W.L.R. 17 (C.A.), refd to. [Appendix 1].

Rogers v. Hill, [1973] 4 W.W.R. 606 (B.C.C.A.), refd to. [Appendix 1].

Dziwenka v. R., [1972] S.C.R. 419, refd to. [Appendix 1].

Arnason and Arnason v. Northway Avi­ation Ltd. and Enzlberger, [1980] 4 W.W.R. 228; 4 Man.R.(2d) 199 (Q.B.), refd to. [Appendix 1].

Hayes v. Nanaimo Shipyard Ltd., [1972] 1 W.W.R. 180 (B.C.S.C.), affd. [1972] 5 W.W.R. 337 (B.C.C.A.), refd to. [Ap­pen­dix 1].

Shebansky v. Kapchinsky (1981), 28 A.R. 451 (Q.B.), revd. (1982), 41 A.R. 424 (C.A.), refd to. [Appendix 1].

Elofson v. Davis et al. (1997), 195 A.R. 321; 49 Alta. L.R.(3d) 327 (Q.B.), refd to. [Appendix 1].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; [1995] 10 W.W.R. 1, refd to. [Appendix 1].

Ter Neuzen v. Korn - see Neuzen v. Korn.

Ryan v. Avenue Animal Hospital Ltd. and Lemckert (1989), 95 N.B.R.(2d) 405; 241 A.P.R. 405 (T.D.), refd to. [Appen­dix 1].

Connell v. Prescott (Town) (1892), 20 O.A.R. 49, affd. (1893), 22 S.C.R. 147, refd to. [Appendix 1].

Sandilands et al. v. Edwards (1993), 140 A.R. 161 (Q.B.), refd to. [Appendix 1].

Southwhite Stables Inc. v. Ingram Veterin­ary Services Ltd. et al., [1984] Alta. D. 2632-03, refd to. [Appendix 1].

Wheeler v. Muri, [1996] B.A.C.W.S.(3d) 589; 151 Sask.R. 220 (Q.B.), refd to. [Appendix 1].

Tiesmaki et al. v. Wilson et al., [1974] 4 W.W.R. 19 (Alta. T.D.), refd to. [Appen­dix 1].

Kangas v. Parker, [1976] 5 W.W.R. 25 (Sask. Q.B.), refd to. [Appendix 1].

R. v. Bateman (1925), 41 T.L.R. 557; 19 Cr. App. R. 8, refd to. [Appendix 1].

Crits v. Sylvester (1956), 1 D.L.R.(2d) 502 (Ont. C.A.), refd to. [Appendix 1].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7; 10 C.C.L.T.(2d) 101; 9 C.P.C.(3d) 78, refd to. [Appendix 1].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Rodych v. Krasey et al., [1971] 4 W.W.R. 358 (Man. Q.B.), refd to. [Appendix 1].

Town v. Archer (1902), 4 O.L.R. 383 (H.C.), refd to. [Appendix 1].

McCormick v. Marcotte, [1972] S.C.R. 18, refd to. [Appendix 1].

Tiesmaki et al. v. Wilson et al., [1975] 6 W.W.R. 639 (Alta. C.A.), refd to. [Appendix 1].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [Appendix 1].

Layden and Layden (J.B.) Oilfield Con­tractors Ltd. v. Cope et al. (1984), 52 A.R. 70; 28 C.C.L.T. 140 (Q.B.), refd to. [Appendix 1].

Kehler v. Myles and Foothills Provincial General Hospital (1986), 74 A.R. 259; 48 Alta. L.R.(2d) 258 (Q.B.), refd to. [Appendix 1].

Fleury and Hoff v. Woolgar (1996), 179 A.R. 380; 37 Alta. L.R.(3d) 346 (Q.B.), refd to. [Appendix 1].

Davidson v. Connaught Laboratories (1980), 14 C.C.L.T. 251 (Ont. H.C.), refd to. [Appendix 1].

Maynard v. West Midlands Regional Health Authority (1984), 1 W.L.R. 635 (H.L.), refd to. [Appendix 1].

Roe v. Minister of Health; Woolley v. Minister of Health, [1954] 2 Q.B. 66 (C.A.), refd to. [Appendix 1].

Statutes Noticed:

Veterinary Profession Act, S.A. 1984, c. V-3.1, generally [Appendix 1].

Authors and Works Noticed:

Jackson, Rupert M., and Powell, John L., Professional Negli­gence (3rd Ed. 1992), pp. 454-55, 464 [Appendix 1].

Linden, Allen M., Canadian Tort Law (4th Ed. 1988), generally [Appendix 1].

Morris, William Otis, Veterinarian in Liti­gation, generally [Appendix 1].

Nathan, Medical Negligence, generally [Appendix 1].

Picard, Ellen I., and Robertson, Gerald A., The Legal Liability of Doctors and Hos­pitals in Canada (3rd Ed. 1996), gen­erally [Appendix 1].

Salmond and Heuston, R.F.V., The Law of Torts (17th Ed. 1977), p. 220 [Appendix 1].

Counsel:

B.D. Baltimore (McCuaig Desrochers), for the plaintiff;

W.L. Blenkendorf, Q.C. (Corbett & Com­pany), for the defendants.

This action was heard by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who filed the follow­ing decision on March 4, 1998.