Preston et al. v. Chow et al., (2007) 224 Man.R.(2d) 39 (QB)

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 20, 2007
• Jurisdiction: Manitoba
• Citations: (2007), 224 Man.R.(2d) 39 (QB);2007 MBQB 318

Preston v. Chow (2007), 224 Man.R.(2d) 39 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. JA.026

Christina Preston and Cheryl Mott as the Litigation Guardian for Calla Elizabeth Preston (plaintiffs) v. Chi-Ieng Chow, The Misericordia General Hospital, Elsie D'Eshambeault, Villa Rosa Inc. and Frances Gaudinez (defendants)

(CI 95-01-94122)

Christina Preston (plaintiff) v. Elsie D'Eshambeault and Villa Rosa Inc. (defendants)

(CI 99-01-15497; 2007 MBQB 318)

Indexed As: Preston et al. v. Chow et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

December 20, 2007.

Summary:

Shortly after birth, a child developed herpes encephalitis and as a result suffered permanent neurological damage leaving her with the mental age of a toddler. Her mother had a herpes infection which she alleged was transmitted to the child during the delivery. The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy and an employee of the clinic at the home for single mothers where the mother was residing at the time of the child's birth.

The Manitoba Court of Queen's Bench allowed the action against the doctor and assessed damages accordingly. The court dismissed the claim against the employee.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - [See Damage Awards - Topic 634 ].

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - At issue was an assessment of damages for future care of child who was born with neurological damage leaving her permanently with the mental age of a toddler through the negligence of a doctor - The Manitoba Court of Queen's Bench held that the child, who was 12 at trial, was entitled to damages for attendants that would allow her to continue to live with her mother rather than be institutionalized - The court based its calculation of the cost of attendants on hiring the attendants through an agency, based on a rate of $20 per hour and $30 on holidays - In determining the amount of attendant care required, the court took into account government funded day programs available once the child turned 21, however, the court did not consider the availability of respite care, either now, or when the child turned 21 - The court determined that the child needed attendant care for five hours a day on days that she would be in school, with a 100 hour per year contingency fund for overnight care - When the child was not in school, 12 hours of attendant care was needed - When the child turned 21 she needed 18 hours per day, less six hours on the days she would attend a day program - See paragraphs 231 to 273.

Damage Awards - Topic 489.3

Injury and death - General damage awards - Increased housing costs - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in permanent neurological damage leaving her with the mental age of a toddler - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The plaintiffs sought damages to allow the child to purchase a home - The plaintiffs claimed that the child was a very active person who required room to move around and that her home should be large enough to accommodate caregivers - The Manitoba Court of Queen's Bench held that the doctor was negligent in not suspecting that the mother had herpes and in dealing with the pregnancy accordingly - In assessing damages, the court held that the child's injuries did not necessitate a house as opposed to an apartment - However, the court opined that the child's present residence was unsuitable - She was living with her mother in a one bedroom apartment with her mother sleeping in the dining room - The court awarded damages of $350 per month for three years to allow the rental of a two bedroom apartment until the mother was able to secure employment - See paragraphs 274 to 275.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in neurological damage leaving her permanently with the mental age of a toddler - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The plaintiffs claimed damages for loss of income/earning capacity - The Manitoba Court of Queen's Bench held that the doctor was negligent in not suspecting that the mother had herpes and in dealing with the pregnancy accordingly - In calculating damages the court used a 65 year life expectancy - The court opined that the child would have completed high school and some post-secondary education and her lost income should be calculated on that basis - The court found that the present value of the child's future income loss was $481,278 (to be recalculated at judgment date) - See paragraphs 285 to 294.

Damage Awards - Topic 499

Injury and death - General damage awards - Transportation - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in neurological damage leaving her permanently with the mental age of a toddler - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The plaintiffs sought damages to allow the purchase of a car and associated expenses - They argued that the child was highly active and wandered so it was difficult to use public transportation - The Manitoba Court of Queen's Bench held that the doctor was negligent in not suspecting that the mother had herpes and in dealing with the pregnancy accordingly - In assessing damages, the court held that the purchase of a car was not necessary to meet her needs - She was transported to and from school by bus and would be transported to and from any day programs by the responsible agency - The mother did not take the child to shop or do errands - The court held that a taxi fund of $3,000 sufficient to fund one or two excursions per week to medical appointments and social outings was reasonable - See paragraphs 276 and 277.

Damage Awards - Topic 578

Torts - Injury to third parties - Loss of income by parent - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in permanent neurological damage leaving her with the mental age of a toddler - She needed 24 hour care which had been provided by her mother except for when the child was in school - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The mother was 16 when the child was born and the child was 12 by the time of trial - The Manitoba Court of Queen's Bench held that for calculating lost income for the mother, it was reasonable to assume that she would have entered the workforce earning minimum wage ($8.00 per hour) when the child was about 2.5 years old, had the child not been disabled - Her wages would have increased by the cost of living over the past eleven years - Deductions would have to be made for the income she earned (if any) and the social assistance she received - In the result, the court awarded the mother $200,000 for past lost income and $17,160 per year for three years for loss of future earnings (the present value of those amounts to be determined) - See paragraphs 325 to 351.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in permanent neurological damage leaving her with the mental age of a toddler - Although she was profoundly mentally retarded, she was physically quite agile - Nonverbal - Unable to communicate - Wore diapers - Needed help bathing and dressing - Could feed herself, but needed to be watched for choking - Able to walk, run and jump on a trampoline - Very active and constantly on the move - 24 hour care required - Had to be locked in her room at night for her own safety and supervised during the night - The mother provided most of her care, except when the child attended school - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The child was 12 by the time of trial - The Manitoba Court of Queen's Bench held that the doctor was negligent in not suspecting that the mother had herpes and in dealing with the pregnancy accordingly - The court held that it was appropriate in this case to award the child the upper limit of non-pecuniary general damages ($311,000) - See paragraphs 307 to 319.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - The Manitoba Court of Queen's Bench discussed whether an award at the upper limit of non-pecuniary damages could be awarded to a plaintiff who suffered catastrophic brain injuries at birth - See paragraphs 307 to 318.

Damages - Topic 1537

General damages - Elements of general damages - Loss of opportunity to invest - At issue was an assessment of non-pecuniary general damages for a child who was born with neurological damage leaving her permanently with the mental age of a toddler through the negligence of a doctor - The Manitoba Court of Queen's Bench awarded non-pecuniary general damages of $311,000 - The court awarded an amount for loss of opportunity to invest based on applying a 3% discount rate to the award of non-pecuniary damages (Court of Queen's Bench Act, s. 80) - See paragraphs 320 to 323.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counselling) - At issue was an assessment of damages for loss of earning capacity/loss of income for a child who was born with neurological damage leaving her permanently with the mental age of a toddler through the negligence of a doctor - The Manitoba Court of Queen's Bench rejected the doctor's argument that no amount should be awarded for investment management fees because a professional fund manager would be able to earn sufficient returns on the plaintiffs' money to pay his fee and still maintain the value of the account, even with conservative investments - The court also rejected the plaintiffs' suggestion that .5% of the average fund balance each year would be a conservative estimate for investment management fees - The court opined that the plaintiff's suggestion would yield an excessively high amount - The court, after noting how difficult it was to determine a reasonable management fee intended to cover a period of 50 years, awarded $150,000 for investment management fees - See paragraphs 300 to 302.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - At issue was an assessment of damages for loss of earning capacity/loss of income for a child who was born with neurological damage leaving her permanently with the mental age of a toddler through the negligence of a doctor - The Manitoba Court of Queen's Bench held that the child would likely have completed high school and some post-secondary education and loss of income should be determined on that basis - However, the court opined that had it found that the child's lost earnings should be based on a high school education only, it would be inclined to accept the plaintiff's argument that the amount should be adjusted to reflect the narrowing wage gap between men and women - Both the plaintiffs' actuary and defendants' business evaluator based their calculations on average earnings reported by Statistics Canada for females - The court noted that there had been criticism in legal literature about the continued use of gender-based statistics in assessing loss of income claims - See paragraphs 290 to 293.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - At issue was an assessment of damages for loss of earning capacity/loss of income for a child who was born with neurological damage leaving her permanently with the mental age of a toddler through the negligence of a doctor - The Manitoba Court of Queen's Bench determined that the child's life expectancy was 65 years - The court held that because the child's life expectancy was the same as her assumed age of retirement, no lost years deduction should be applied in this case (i.e., she was entitled to compensation for lost earnings without any lost years deduction) - The court stated that a deduction did not make sense in this case where the child was expected to live for as long as she would have worked and would in fact be using the damages she was awarded for future income to pay her living expenses - Her estate would not receive a windfall - Compensating her for her total loss of earnings (without a deduction for lost years) was an alternative to including in her claim for future care costs an amount to cover her normal costs of living - See paragraphs 295 to 290.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - The Manitoba Court of Queen's Bench stated that "the purpose of a lost years deduction is to ensure that a plaintiff whose life expectancy has been reduced as a result of her injury is not overcompensated by an award for future lost earnings. An award based on what the plaintiff would have earned had she lived a normal life expectancy does not reflect the fact that, had she lived, she would be using some of her earnings for her personal living expenses and, at the end of her life, her estate would be left with the net amount. Therefore, to award a plaintiff the gross amount would have the effect of enriching her estate rather than compensating her for her loss. As a result, it is reasonable to deduct from an award for lost earnings an amount to reflect the percentage of her income that would have been spent on living expenses" - See paragraph 296.

Damages - Topic 1557

General damages - General damages for personal injury - Calculation and method of assessment - Life expectancy - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis which resulted in neurological damage leaving her permanently with the mental age of a toddler - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The Manitoba Court of Queen's Bench held that the doctor was negligent in not suspecting that the mother had herpes and in dealing with the pregnancy accordingly - The court assessed damages for future care based on a 65 year life expectancy - See paragraphs 221 to 230.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - A child was exposed to herpes during birth and as a result developed herpes encephalitis which caused permanent neurological damage - The mother and child (the plaintiffs) sued an employee of the clinic at the home for single mothers where the mother was residing - The plaintiffs alleged that the employee breached her fiduciary duty to the mother in sending an incomplete referral note to the doctor (i.e., while the note told the doctor that the mother wanted an STD check, it did not specifically mention that the mother had been exposed to herpes) - The employee, although a registered nurse, was not practising as a nurse at the time, but had been hired to run the clinic - The Manitoba Court of Queen's Bench held that, even assuming that a fiduciary relationship existed, the conduct in issue in this case, the writing of the referral note, had nothing to do with the conduct that the fiduciary obligation was meant to address - There was no power imbalance in this situation indicating a fiduciary relationship - Here the allegations of breach of fiduciary duty were the same as allegations of negligence - The employee's actions were adequately assessed under the law of negligence - The situation in this case was not one that was "truly in need of the special protection that equity affords" - See paragraphs 88 to 95.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis and as a result suffered permanent neurological damage - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy, alleging that the doctor failed to take an adequate history from, or conduct a proper examination of the mother, which led to her failure to diagnose or to have a strong suspicion that the mother had an active herpes infection - As a result, she failed in her duty to consult with, or refer the mother to, an expert and as a result the mother and child's care were not properly managed - The Manitoba Court of Queen's Bench held that the doctor was not negligent in failing to diagnose the herpes infection where there were no vesicles; however, the doctor fell below the accepted standard in her failure to take a proper history and have a high index of suspicion that the mother might have a primary herpes infection - As a result she failed to manage the pregnancy in accordance with a reasonable standard of care (e.g., the mother was not referred to a specialist, the child was not delivered by caesarean section or given medication for herpes immediately after her birth) - The court, applying the material contribution test, found that the doctor's negligence caused the child's damage - See paragraphs 159 to 193.

Medicine - Topic 4249

Liability of practitioners - Negligence - Failure to refer - [See Medicine - Topic 4250 ].

Medicine - Topic 4250

Liability of practitioners - Negligence - Failure to diagnose an illness - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis and as a result suffered permanent neurological damage - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - The plaintiffs claimed that the doctor was negligent in failing to diagnose the herpes infection when she went to her for an STD check late in her pregnancy - The Manitoba Court of Queen's Bench held that the doctor's failure to diagnose the herpes infection was not negligent in the absence of seeing vesicles - However the court found that the doctor was negligent in not having a high index of suspicion that the mother had an infection and as a result in not managing the pregnancy in accordance with a reasonable standard of care - A proper history, combined with the signs and symptoms (redness, burning and itching, pain on urination and discharge) and the results of the tests she did take, should have left her with a high degree of suspicion that the mother did have a herpes infection - In view of the potentially drastic consequences to the baby where a mother had an active infection at the time of delivery, a fact of which the doctor was aware, she had a duty to investigate the matter further and refer the mother to a specialist or consult with an infectious disease specialist or neonatalogist - In failing to take a proper history and her lack of knowledge of the symptoms of herpes, the doctor fell below the accepted standard - See paragraphs 130 to 158.

Medicine - Topic 4252.2

Liability of practitioners - Negligence - Obstetrical or gynaecological care - [See Medicine - Topic 4250 ].

Medicine - Topic 4255.1

Liability of practitioners - Negligence - Prenatal care - [See Medicine - Topic 4250 ].

Medicine - Topic 4259.1

Liability of practitioners - Negligence - Defences - Waiver - Shortly after birth a child developed herpes encephalitis and as a result suffered permanent neurological damage leaving her with the mental age of a toddler - The child's mother (C.), a minor, had a herpes infection which she alleged was transmitted to the child during the delivery - C. and her child (the plaintiffs) sued the doctor who cared for C. during her pregnancy and an employee of the clinic at the home for single mothers where C. was residing at the time of the child's birth - When C. entered the residence, her mother entered into a voluntary placement agreement with the Winnipeg Child and Family Services which put C. in the care of the agency - The agreement contained an indemnity clause which exempted the agency or anyone acting under its instruction from incurring liability for treatment provided - The doctor claimed that the clause provided a waiver of liability for any medical care provided and that it protected her from liability because she was "engaged by" the residence to provide care to its residents - The Manitoba Court of Queen's Bench rejected this argument for a number of reasons - See paragraphs 208 to 213.

Medicine - Topic 4260.1

Liability of practitioners - Negligence - Taking of medical history - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis and as a result suffered permanent neurological damage - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy - An employee of the home for single mothers where the mother resided had arranged an appointment with the doctor for the mother to have an STD check when the mother revealed that she had been exposed to herpes - The doctor did not explore the reason for the mother's request for an STD check - She was not tested for herpes - The plaintiffs claimed that the doctor failed to take an adequate history - The Manitoba Court of Queen's Bench held that the history taken by the doctor on the date she requested the STD check was inadequate - The court stated that the evidence supported a finding that the standard of care expected of a family practitioner where a pregnant woman late in pregnancy requested an STD check was to examine the reasons why and delve into the history more thoroughly than one would in taking a general history at the outset of the pregnancy - Here the doctor did not explore at all the reason for the mother's request for an STD check - The court found that in not exploring the reasons for the mother's request for an STD check, the doctor fell below what is expected of a family practitioner in the circumstances - See paragraphs 102 to 129.

Medicine - Topic 6803

Nurses - Nurses notes - A child was exposed to herpes during birth and as a result developed herpes encephalitis which caused permanent neurological damage - The mother and child (the plaintiffs) sued an employee of the clinic at the home for single mothers where the mother was residing - The employee, although a registered nurse, was not practising as a nurse at the time, but had been hired to run the clinic - The plaintiffs alleged that the employee was negligent in failing to specifically tell the clinic doctor that the mother had told her that she had been exposed to herpes virus and in not documenting that information in the obstetrical record - The Manitoba Court of Queen's Bench noted that, while the employee was not performing all the functions of a registered nurse, in charting and communicating with other members of the health care team she was performing nursing functions and therefore would not be held to a lesser standard than a registered nurse in the performance of those particular functions - The court determined that the employee's actions were more than reasonable and she was not negligent - In particular, the court noted that the employee acted immediately when the mother reported her herpes exposure - The employee tried to talk to the clinic doctor, but when she was unable to do so, made an appointment for the first available time - She arranged for the mother's social worker to take her to the appointment to ensure she would get there - She recorded the mother's symptoms on the chart and wrote a note to the doctor saying that the mother had requested an STD check - The fact that the employee's note did not specifically mention the mother's exposure to herpes had no effect on how the doctor proceeded - Neither did the fact that the mother told the doctor of her herpes exposure during a hospital visit the next day - See paragraphs 73 to 86.

Torts - Topic 6624

Defences - Contributory negligence - Particular cases - Medical malpractice - A child, who was exposed to herpes during a vaginal birth, developed herpes encephalitis and suffered permanent neurological damage - The mother and child (the plaintiffs) sued the doctor who cared for the mother during her pregnancy, alleging negligence - The doctor alleged contributory negligence - She claimed that the mother was responsible for the damage suffered by the child because she contracted herpes as a result of engaging in unprotected sex, knowing the risks of doing so - The doctor also claimed that the mother did not seek medical care quickly enough when the child developed seizures - The Manitoba Court of Queen's Bench held that contributory negligence could not be advanced as a defence to the child's claim for pre-natal damages; however, the claim of contributory negligence could stand insofar as it related to alleged negligent acts of the mother after the child's birth - In this case, however, there was no basis for the allegation of contributory negligence - See paragraphs 194 to 207.

Cases Noticed:

Gemoto v. Calgary Regional Health Authority et al., [2006] A.R. Uned. 644; 2006 ABQB 740, refd to. [para. 52].

Gibbons et al. v. Harris, [1924] 1 W.W.R. 674 (C.A.), refd to. [para. 77].

Bauer v. Seager et al. (2000), 147 Man.R.(2d) 1; 2000 MBQB 113, refd to. [para. 83].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 83].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 89].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 89].

Base v. Hadley et al., [2006] Northwest Terr. Cases Uned. 4; 2006 NWTSC 4, refd to. [para. 92].

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, refd to. [para. 93].

McDonald-Wright et al. v. O'Herlihy et al., [2005] O.T.C. 294; 75 O.R.(3d) 261 (Sup. Ct.), refd to. [para. 94].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 96].

Crawford v. Penney et al., [2003] O.T.C. 16 (Sup. Ct.), affd. [2004] O.A.C. Uned. 433; 26 C.C.L.T.(3d) 246 (C.A.), leave to appeal denied (2005), 337 N.R. 192; 204 O.A.C. 398 (S.C.C.), refd to. [para. 98].

Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 (H.L.), refd to. [para. 99].

Lankenau Estate v. Dutton (1986), 37 C.C.L.T. 213 (B.C.S.C.), affd. (1991), 55 B.C.L.R.(2d) 218; 7 C.C.L.T.(2d) 42 (C.A.), dist. [para. 126].

Bosard v. Davey (2005), 191 Man.R.(2d) 254; 2005 MBQB 80, dist. [para. 128].

Scott v. Mohan - see Crick v. Mohan.

Crick v. Mohan (1993), 142 A.R. 281 (Q.B.), refd to. [para. 140].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 69 Alta. L.R.(4th) 1; 2007 SCC 7, refd to. [para. 162].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 164].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 165].

Aristorenas v. Comcare Health Services et al. (2006), 216 O.A.C. 161; 83 O.R.(3d) 282 (C.A.), leave to appeal refused (2007), 368 N.R. 394; 233 O.A.C. 398 (S.C.C.), refd to. [para. 174].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 174].

Preston v. Chow et al. (2002), 163 Man.R.(2d) 134; 269 W.A.C. 134; 2002 MBCA 34, refd to. [para. 196].

Dobson v. Dobson and Carter, [1999] 2 S.C.R. 753; 242 N.R. 201; 214 N.B.R.(2d) 201; 547 A.P.R. 201, refd to. [para. 196].

Crossman v. Stewart (1977), 82 D.L.R.(3d) 677; 5 C.C.L.T. 45 (B.C.S.C.), refd to. [para. 200].

Laurent et al. v. Théoret; Laurent et al. v. Hôpital Notre-Dame de l'Espérance, [1978] 1 S.C.R. 605; 17 N.R. 593, refd to. [para. 200].

Director of Child and Family Services v. A.C. et al. (2007), 212 Man.R.(2d) 163; 389 W.A.C. 163; 2007 MBCA 9, refd to. [para. 211].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 246].

Guerineau v. Seger et al., [2001] B.C.T.C. 291; 2001 BCSC 291, refd to. [para. 250].

Thornton v. Board of School Trustees of District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 255].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 259].

Gerelus v. Lim et al. (2006), 206 Man.R.(2d) 241; 2006 MBQB 194, refd to. [para. 260].

Fullerton v. Delair et al. (2006), 228 B.C.A.C. 291; 376 W.A.C. 291; 2006 BCCA 339, refd to. [para. 262].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 283].

Houle et al. v. Calgary (City) and Canada Safeway Ltd. (1985), 60 A.R. 366; 38 Alta. L.R.(2d) 331 (C.A.), refd to. [para. 288].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 292].

Lusignan v. Concordia Hospital, [1997] 6 W.W.R. 185; 117 Man.R.(2d) 241 (Q.B.), refd to. [para. 301].

Chow et al. v. Wellesley Hospital et al., [1999] O.T.C. 252 (Sup. Ct.), refd to. [para. 310].

M.D. et al. v. British Columbia et al., [2000] B.C.T.C. 287; 2000 BCSC 700, refd to. [para. 310].

Brimacombe v. Mathews et al. (2001), 150 B.C.A.C. 71; 245 W.A.C. 71; 2001 BCCA 206, refd to. [para. 310].

Bystedt v. Hay et al., [2001] B.C.T.C. 1735; 2001 BCSC 1735, affd. (2004), 194 B.C.A.C. 240; 317 W.A.C. 240; 2004 BCCA 124, refd to. [para. 311].

Webster et al. v. Chapman et al. (1996), 114 Man.R.(2d) 1 (Q.B.), dist. [para. 312].

Sandhu v. Wellington Place Apartments et al., [2006] O.T.C. 517; 81 O.R.(3d) 307 (Sup. Ct.), refd to. [para. 319].

Melnychuk v. Moore and Associated Beer Distributors Ltd. (1989), 57 Man.R.(2d) 174 (C.A.), refd to. [para. 322].

Kobs v. Merchants Hotel et al. (1990), 70 Man.R.(2d) 178 (C.A.), refd to. [para. 322].

Cunningham v. Harrison, [1973] 3 All E.R. 463 (C.A.), refd to. [para. 331].

Donnelly v. Joyce, [1973] 3 All E.R. 475 (C.A.), refd to. [para. 331].

Taylor v. Bristol Omnibus Co., [1975] 2 All E.R. 1107 (C.A.), refd to. [para. 331].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 337].

Authors and Works Noticed:

Arvin, A.M., and Prober, C.G., Herpes Simplex Virus Infections: The Genital Tract and the Newborn, Ex. 11 [para. 5, footnote 2].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 178 [para. 331]; 295 to 298 [para. 291].

Evans, A.S., and Kaslow, R.A., Viral Infections of Humans: Epidemiology and Control (4th Ed. 1997), generally [para. 71].

Holmes, K., Mardh, P., Sparling, P., and Weisner, P., Sexually Transmitted Diseases (2nd Ed. 1989), generally [para. 180, footnote 6].

Remington, J.S., and Klein, J.O., Infectious Diseases of the Fetus and Newborn Infant (6th Ed. 2006), generally [para. 70].

Counsel:

Harvey I. Pollock, Q.C., Martin J. Pollock and Derek M. Olson, for the plaintiff, Calla Preston;

John S. Michaels, for the plaintiff, Christina Preston;

Helga D. Van Iderstine and Gregory M. Fleetwood, for the defendant, Chi-Ieng Chow;

Paul B. Forsyth and Kevin T. Williams, for the defendants, Elsie D'Eshambeault and Villa Rosa Inc.

This case was heard before Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on December 20, 2007.