Wenden v. Trikha et al., (1991) 116 A.R. 81 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 27, 1991
• Citations: (1991), 116 A.R. 81 (QB)

Wenden v. Trikha (1991), 116 A.R. 81 (QB)

MLB headnote and full text

H. Johanna Wenden and Charles Dobranowski-Wenden and Sheri Rose Wenden, both infants suing by and with the consent of their next friend, H. Johanna Wended (plaintiffs) v. Anil Kumar Trikha, Royal Alexandra Hospital and C. Mathew Yaltho (defendants)

(Action No. 8603-27259)

Indexed As: Wenden v. Trikha et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

June 27, 1991.

Summary:

Trikha was a voluntarily admitted psychi­atric patient who eloped from the hospital, drove his car through a red light and struck the plaintiff's motor vehicle, causing her serious injuries. The plaintiff brought a negligence action for damages against Trikha, the psychiatrist and the hospital. Trikha claimed he was suffering from delusions which prevented him from under­standing the nature and quality of his actions and from appreciating or discharging any duty of care owed to the plaintiff. The psy­chiatrist and hospital claimed they neither owed a duty of care to the plaintiff, nor breached any duty of care if one existed.

The Alberta Court of Queen's Bench allowed the action against Trikha, but dis­missed the action against the psychiatrist and hospital. The court assessed damages ac­cordingly.

Damage Awards - Topic 102

Personal injuries and death - Head injuries - Brain damage - A 39 year old woman with pre-existing psychological problems (suicide attempts) and back pain suffered serious brain damage - Personality altered - Loss of memory, concentration and emotional stability - Not totally disabled from general living - Loss of intellect and drive (I.Q. reduced from above to below average) - Skull fracture caused double vision - Right side of face paralyzed (disfigurement) - Minimal hearing loss - Suffers vertigo, dizziness and loss of bal­ance - Loss of smell and taste - Fractured clavicle and rib - Continued headaches - The Alberta Court of Queen's Bench assessed $160,000 general damages for nonpecuniary loss - See paragraphs 127 to 160, 246 to 255.

Damages - Topic 528

Limits of compensatory damages - Re­moteness - Torts - Foreseeability - The plaintiff mother suffered brain damage rendering her unfit to have custody of her infant child - Her ex-husband had custody - The plaintiff incurred $27,634.67 in legal costs respecting custody and access disputes - The Alberta Court of Queen's Bench stated that the legal costs were not recoverable as damages against the defen­dant - The court stated that "no reasonable person would foresee that a custody dis­pute would arise ... as a result of injuries suffered by [the plaintiff] in the accident" - See paragraph 175.

Damages - Topic 590

Limits of compensatory damages - Predis­position to damage - "Thin skull rule" - The Alberta Court of Queen's Bench stated that the thin skull rule provided that a tortfeasor took his victim as he found him - The court stated that "this doesn't mean that in assessing the factors that go into the question of compensation for losses such as loss of amenities, pain and suffer­ing and loss of expectation of life, one does not take into account the known physical and mental problems which would have impacted and still impact upon those very factors ... the tortfeasor is not liable for the victim's pre-morbid condition." - See paragraph 251.

Damages - Topic 1292

Losses by third parties - Recoverable losses - Children - Loss of care and guid­ance - A pregnant woman was seriously injured - Her child was born without physical or mental injuries - The woman claimed damages on account of the child's deprivation of her ability to provide the necessary care, comfort and guidance which she would otherwise have provided - The woman claimed that this head of damage, which was allowed for the children of a fatally injured parent, was not dependent upon the Fatal Accidents Act for its existence - The Alberta Court of Queen's Bench disagreed - The court stated that legislation was necessary to allow such a claim in the case of non­fatally injured parents - See paragraphs 259 to 262.

Damages - Topic 1435

Special damages - Cost of housekeeping services - A plaintiff was seriously injured - Social Services voluntarily paid for homemaker services to care for the plain­tiff and her newborn child - The expense was both reasonable and necessary - The plaintiff agreed to reimburse the Depart­ment if she recovered any amount from insurance - The Alberta Court of Queen's Bench awarded the plaintiff damages equal to a calculated portion of the cost of the services - See paragraphs 163 to 174.

Damages - Topic 1440

Special damages - Medical and hospital - Massage therapy - The plaintiff was seri­ously injured in a motor vehicle accident - She took massage therapy - It was not prescribed by her doctors - The Alberta Court of Queen's Bench disallowed the plaintiff's damage claim for this service absent proof that the massages were nec­essary - See paragraph 187.

Damages - Topic 1440

Special damages - Medical and hospital - Physiotherapy - The plaintiff was serious­ly injured in a motor vehicle accident - She paid $6,615 for treatment by an unli­censed physiotherapist - The plaintiff's doctors did not prescribe the treatment and found it unnecessary - The Alberta Court of Queen's Bench disallowed the plaintiff's damage claim for the $6,615 - See para­graphs 189 to 193.

Damages - Topic 1440

Special damages - Medical and hospital - Psychologists - The plaintiff was seriously injured in a motor vehicle accident - The plaintiff obtained treatment from four psychologists, even though it was unnec­essary because she was under the care of a psychiatrist - The Alberta Court of Queen's Bench disallowed the plaintiff's damage claim for the cost of the psychol­ogists' counselling - See paragraph 194.

Damages - Topic 1460

Special damages - Cost of personal ser­vices - The plaintiff was seriously injured in a motor vehicle accident - A friend voluntarily, without expecting payment, performed certain chores for the plaintiff - The Alberta Court of Queen's Bench stated that if what the friend did was necessitated by the plaintiff's injuries the plaintiff was entitled to compensation in damages - The court arbitrarily fixed damages under this claim at $500 - See paragraphs 196 to 198.

Damages - Topic 1460

Special damages - Cost of personal ser­vices - The plaintiff was seriously injured in a motor vehicle accident - Her future husband (D) provided personal services to her without expecting payment - The services included renovation work, shop­ping and caring for the plaintiff and her infant child - D left his job to care for the plaintiff - The Alberta Court of Queen's Bench held that D's services had a pecuni­ary value to the plaintiff and the plaintiff was entitled to reasonable compensation of $4,380 - See paragraphs 176 to 182.

Damages - Topic 1543

General damages - Personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - A 39 year old woman suffered serious brain damage which affected her ability to enjoy the amenities of life - The woman also suf­fered pre-existing psychological and back problems which further negatively affected her enjoyment of life - The Alberta Court of Queen's Bench reduced the $160,000 general damage award for nonpecuniary loss by 25% to reflect the loss of amen­ities attributable to her pre-existing condi­tions - See paragraphs 251 to 255.

Damages - Topic 1543

General damages - Personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - The Alberta Court of Queen's Bench stated that the upper limit for general damages for non­pecuniary loss ($100,000 in 1978 dollars) was in 1990, after adjustment for inflation, $219,124 - See paragraph 246.

Damages - Topic 1545

General damages - Personal injury - Aggravation of pre-existing condition - A 39 year old woman suffered serious brain damage which affected her ability to enjoy the amenities of life - The woman also suffered pre-existing psychological and back problems which further negative­ly affected her enjoyment of life - The Alberta Court of Queen's Bench reduced the $160,000 general damage award for nonpecuniary loss by 25% to reflect the loss of amenities attributable to her pre-existing conditions - See paragraphs 251 to 255.

Damages - Topic 1545

General damages - Personal injury - Aggravation of pre-existing condition - [See Damage Awards - Topic 102 ].

Damages - Topic 1548

General damages - Personal injury - Management of fund fee - A 39 year old career woman (plaintiff) suffered brain damage - She was now unemployable except for low skill jobs - Her intelli­gence, memory, skills, concentration, etc. were seriously diminished - The Alberta Court of Queen's Bench stated that the plaintiff was in need of financial advice and direction in investing her damage award - The court held that the plaintiff was entitled to damages to compensate her for this future expense - See paragraphs 216 to 217.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of earnings - A 39 year old career woman (plaintiff) suffered brain damage rendering future meaningful em­ployment unlikely - She would now be limited to low level type jobs - She would have retired in 2008 at the age of 61, when she would have had 35 years' federal employment and a pension of 70% of her average salary in her best six year period of employment - The Alberta Court of Queen's Bench awarded the plaintiff dam­ages for lost future income on this basis, leaving it to the parties to work out the exact calculations - See paragraphs 209 to 215.

Damages - Topic 1552

General damages - Personal injury - Loss of unused sick leave benefits - A plaintiff claimed $16,083 for lost accumulated sick leave, vacation leave, pension and other fringe benefits after an injury rendered her unemployed - The Alberta Court of Queen's Bench rejected the claim - She was on sick leave with pay and was not entitled to unused sick leave - The plain­tiff received the vacation pay to which she was entitled and was not entitled to vaca­tion leave while on sick leave with pay or while receiving disability insurance (which she was) - See paragraph 162.

Damages - Topic 1552.1

General damages - Personal injury - Loss of vacation pay - [See Damages - Topic 1552 ].

Damages - Topic 1556

General damages - Personal injury - Calculation and method of assessment - Contingencies - Deduction for - The Alberta Court of Queen's Bench discussed the effect of contingencies on a damage award for future care and treatment and lost future income - The court stated that "if there is a real, substantial possibility of an event occurring in the future then that will affect the award of damages made. The question of degree of risk is reflected in the percentage to be applied to the particular head of damage under consider­ation" - See paragraphs 225 to 229.

Damages - Topic 1556

General damages - Personal injury - Calculation and method of assessment - Contingencies - Deduction for - A 39 year old woman suffered brain damage in a motor vehicle accident - The Alberta Court of Queen's Bench awarded the plaintiff general damages for future care and treatment and for lost future income - The court reduced both assessed heads of damage by 20% for contingencies, includ­ing the real possibility of suicide shorten­ing the plaintiff's life expectancy - See paragraphs 230 to 244.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - The Alberta Court of Queen's Bench stated that in awarding a plaintiff damages for future care and treatment provision must be made to compensate the plaintiff for the Goods and Services Tax (G.S.T.) - See paragraph 208.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - A 39 year old woman (plaintiff) suffered brain damage - The plaintiff could not exercise access to her infant son without supervision - The estimated cost of a relief worker was $5,535 per year, which would be necessary until the child was 12 years of age - The Alberta Court of Queen's Bench allowed the plaintiff's damage claim for this head of damage - See paragraphs 200 to 203.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - [See Damages - Topic 1628 ].

Damages - Topic 1628

General damages - Considerations in assessing - Potential income tax liability - The Alberta Court of Queen's Bench stated that "the law is now clear that an allow­ance must be made for the impact of tax­ation on the award made for future cost of care" - See paragraph 218.

Hospitals - Topic 2044

Liability of hospitals - To patients - Duty of care - The Alberta Court of Queen's Bench stated that "hospitals and psychia­trists owe a duty to their patients to take such steps as are necessary to prevent their patients suffering loss or damage which they as reasonably prudent people operat­ing a hospital or practising their profession ought to anticipate might result if they do something or omit to do something which is the cause of such loss or damage to the patient ... A hospital also owes a duty to other patients in the hospital to exercise such control and supervision over mentally ill patients that because of his or her con­duct or behaviour, fellow patients do not come to harm." - See paragraph 52.

Hospitals - Topic 5063

Mental hospitals and psychiatric wards - Care of patients - Negligence - The Alberta Court of Queen's Bench stated that "a hospital treating mentally ill patients does owe a duty of care to a person or a class of persons other than its staff or patients if it can be said that it is foresee­able that harm will likely occur to such a person or persons as a result of the behav­iour of a mentally ill patient, provided that there is some further ingredient which establishes a relationship between the hospital and that third party." - See para­graph 54.

Hospitals - Topic 5063

Mental hospital and psychiatric wards - Care of patients - Negligence - A volun­tarily admitted psychiatric patient who eloped from the hospital caused a motor vehicle accident that injured the plaintiff - The plaintiff sued the patient, the hospital and the psychiatrist - The Alberta Court of Queen's Bench discussed, without decid­ing, whether the hospital and psychiatrist owed a duty of care to third parties such as the plaintiff - The court found it un­necessary to decide the issue where the hospital and psychiatrist did not breach a duty of care that may have existed - See paragraphs 52 to 94.

Hospitals - Topic 5063

Mental hospital and psychiatric wards - Care of patients - Negligence - The Alberta Court of Queen's Bench stated that "both a hospital and psychiatrist who becomes aware that a patient presents a serious danger to the well-being of a third party or parties owe a duty of care to take reasonable steps to protect such a person or persons if the requisite proximity of relationship exists between them ... whether or not a person or persons fall within the necessary category will depend upon the particular nature of the risk posed by the patient, the predictability of future behaviour giving rise to the risk, and the ability to identify the person or class of persons at risk. The standard of care in determining whether or not action should be taken by a psychiatrist to protect the person or class of persons and, if so, what should be done, is 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances'" - See paragraph 63.

Hospitals - Topic 5063

Mental hospitals and psychiatric wards - Care of patients - Negligence - A volun­tarily admitted psychiatric patient eloped from hospital, took his car from the parking lot and caused an accident injuring the plaintiff - The plaintiff claimed the hospital and psychiatrist were negligent in failing to place the patient under constant surveillance and in failing to commit him under the Mental Health Act - The Alberta Court of Queen's Bench stated that the hospital and psychiatrist, assuming they owed the plaintiff a duty of care, were not negligent unless they knew or ought to have reasonably foreseen that the patient would elope, go to his car and drive in the manner he did - The court stated that such foreseeability was not proved - See para­graphs 52 to 92.

Medicine - Topic 4247

Liability of practitioners - Negligence - Re mental patients - The Alberta Court of Queen's Bench stated that a psychiatrist owed a duty of care to out-patients he was treating while they were upon his office premises to exercise control and super­vision over mental patients to protect his other patients from harm - The court stated that these relationships had a con­tractual component - See paragraph 52.

Medicine - Topic 4247

Liability of practitioners - Negligence - Re mental patients - The Alberta Court of Queen's Bench stated that "hospitals and psychiatrists owe a duty to their patients to take such steps as are necessary to prevent their patients suffering loss or damage which they as reasonably prudent people operating a hospital or practising their profession ought to anticipate might result if they do something or omit to do some­thing which is the cause of such loss or damage to the patient ... A hospital also owes a duty to other patients in the hospi­tal to exercise such control and supervision over mentally ill patients that because of his or her conduct or behaviour, fellow patients do not come to harm." - See paragraph 52.

Medicine - Topic 4247

Liability of practitioners - Negligence - Re mental patients - A voluntarily ad­mitted psychiatric patient who eloped from the hospital caused a motor vehicle acci­dent that injured the plaintiff - The plain­tiff sued the patient, the hospital and the psychiatrist - The Alberta Court of Queen's Bench discussed, without decid­ing, whether the hospital and psychiatrist owed a duty of care to third parties such as the plaintiff - The court found it un­necessary to decide the issue where the hospital and psychiatrist did not breach a duty of care that may have existed - See paragraphs 52 to 94.

Medicine - Topic 4247

Liability of practitioners - Negligence - Re mental patients - The Alberta Court of Queen's Bench stated that "both a hospital and psychiatrist who becomes aware that a patient presents a serious danger to the well-being of a third party or parties owe a duty of care to take reasonable steps to protect such a person or persons if the requisite proximity of relationship exists between them ... whether or not a person or persons fall within the necessary cat­egory will depend upon the particular nature of the risk posed by the patient, the predictability of future behaviour giving rise to the risk, and the ability to identify the person or class of persons at risk. The standard of care in determining whether or not action should be taken by a psychi­atrist to protect the person or class of persons and, if so, what should be done, is 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exer­cised by members of [that professional specialty] under similar circumstances'" - See paragraph 63.

Medicine - Topic 4247

Liability of practitioners - Negligence - Re mental patients - A voluntarily ad­mitted psychiatric patient eloped from hospital, took his car from the parking lot and caused an accident injuring the plain­tiff - The plaintiff claimed the hospital and psychiatrist were negligent in failing to place the patient under constant surveil­lance and in failing to commit him under the Mental Health Act - The Alberta Court of Queen's Bench stated that the hospital and psychiatrist, assuming they owed the plaintiff a duty of care, were not negligent unless they knew or ought to have reasonably foreseen that the patient would elope, go to his car and drive in the manner he did - The court stated that such foreseeability was not proved - See para­graphs 52 to 92.

Persons of Unsound Mind - Topic 1045

Liability - Torts - Negligence - A psy­chiatric hospital patient eloped, drove his car under the delusion that he had to drive fast to retrieve his spirit from a spaceship in the sky, ran a red light and injured the plaintiff - The Alberta Court of Queen's Bench found the patient liable in negli­gence notwithstanding he did not appreci­ate any duty of care owed to the plaintiff -The court stated that there was no reason why an insane tortfeasor should not be subjected to the same criteria for estab­lishing civil liability as anyone else (i.e., objective standard of reasonableness) - See paragraph 108.

Persons of Unsound Mind - Topic 1045

Liability - Torts - Negligence - The Alberta Court of Queen's Bench discussed whether an insane tortfeasor who caused a motor vehicle accident while subject to delusions was excepted from liability in negligence - The law did make exceptions in the case of a person who without warn­ing suffered an affliction resulting in physical incapacity (e.g., epileptic seizures, diabetic shock, stroke, heart attack, etc.) - The court refused to extend the exception to insane persons, unless a preponderance of evidence established that the person's acts were not conscious acts done of his own volition - The court found an insane tortfeasor liable where he consciously drove his car, did not act against his con­scious will and was not wholly incapaci­tated from operating the car - See para­graphs 108 to 117.

Persons of Unsound Mind - Topic 1045

Liability - Torts - Negligence - A psy­chiatric hospital patient eloped, drove his car under a delusion, ran a red light and injured the plaintiff - The patient was well-educated and knew his problem could only be controlled by medication - He knew the consequences of not taking his medication - The patient was told not to drive while ill, yet failed to make arrange­ments not to have his car at the hospital - The patient stopped taking his medication and the risk was realized - The Alberta Court of Queen's Bench found the patient negligent for failing to ensure that his car was out of his reach while he was a patient (i.e., to remove a known risk of driving and causing injury) - See para­graphs 119 to 126.

Social Assistance - Topic 2003

Subrogation - Entitlement - The plaintiff was injured in an accident - The plaintiff entered into an agreement with the De­partment of Social Services - The Depart­ment provided homemaker services subject to reimbursement if the plaintiff received a settlement from insurance - The Alberta Court of Queen's Bench rejected the plain­tiff's claim that the Director of Child Wel­fare and Maintenance could enforce a claim for these costs against the plaintiff under the Child Welfare Act or the Main­tenance Enforcement Act - The court noted that the Department had no subrogated right to effect such recovery as did the Minister of Health under the Hos­pitals Act - See paragraphs 163 to 165.

Torts - Topic 1

Negligence - General principles - The Alberta Court of Queen's Bench stated that "the law of negligence is not concerned with punishing the tortfeasor nor is it concerned with his or her culpability. The concern is one of compensation for those who have suffered loss or damage by reason of the tortious acts of another." - See paragraph 104.

Torts - Topic 49.22

Negligence - Standard of care - Mentally ill persons - A psychiatric hospital patient eloped, drove his car under a delusion, ran a red light and injured the plaintiff - The patient was well-educated and knew his problem could only be controlled by med­ication - He knew the consequences of not taking his medication - The patient was told not to drive while ill, yet failed to make arrangements not to have his car at the hospital - The patient stopped taking his medication and the risk was realized - The Alberta Court of Queen's Bench found the patient negligent for failing to ensure that his car was out of his reach while he was a patient (i.e., to remove a known risk of driving and causing injury) - See paragraphs 119 to 126.

Torts - Topic 49.22

Negligence - Standard of care - Mentally ill persons - The Alberta Court of Queen's Bench discussed whether an insane tort­feasor who caused a motor vehicle acci­dent while subject to delusions was excepted from liability in negligence - The law did make exceptions in the case of a person who without warning suffered an affliction resulting in physical incapacity (e.g., epileptic seizures, diabetic shock, stroke, heart attack, etc.) - The court refused to extend the exception to insane persons, unless a preponderance of evi­dence established that the person's acts were not conscious acts done of his own volition - The court found an insane tort­feasor liable where he consciously drove his car, did not act against his conscious will and was not wholly incapacitated from operating the car - See paragraphs 108 to 117.

Torts - Topic 49.22

Negligence - Standard of care - Mentally ill persons - A psychiatric hospital patient eloped, drove his car under the delusion that he had to drive fast to retrieve his spirit from a spaceship in the sky, ran a red light and injured the plaintiff - The Alberta Court of Queen's Bench found the patient liable in negligence notwithstanding he did not appreciate any duty of care owed to the plaintiff - The court stated that there was no reason why an insane tortfeasor should not be subjected to the same criteria for establishing civil liability as anyone else (i.e., objective standard of reasonableness) - See paragraph 108.

Torts - Topic 60

Negligence - Causation - Foreseeability - A voluntarily admitted psychiatric patient eloped from hospital, took his car from the parking lot and caused an accident injuring the plaintiff - The plaintiff claimed the hospital and psychiatrist were negligent in failing to place the patient under constant surveillance and in failing to commit him under the Mental Health Act - The Alberta Court of Queen's Bench stated that the hospital and psychiatrist, assuming they owed the plaintiff a duty of care, were not negligent unless they knew or ought to have reasonably foreseen that the patient would elope, go to his car and drive in the manner he did - The court stated that such foreseeability was not proved - See para­graphs 52 to 92.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The Alberta Court of Queen's Bench stated that "a hospital treating mentally ill patients does owe a duty of care to a person or a class of persons other than its staff or patients if it can be said that it is foresee­able that harm will likely occur to such a person or persons as a result of the behav­iour of a mentally ill patient, provided that there is some further ingredient which establishes a relationship between the hospital and that third party." - See para­graph 54.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - A volun­tarily admitted psychiatric patient who eloped from the hospital caused a motor vehicle accident that injured the plaintiff - The plaintiff sued the patient, the hospital and the psychiatrist - The Alberta Court of Queen's Bench discussed, without decid­ing, whether the hospital and psychiatrist owed a duty of care to third parties such as the plaintiff - The court found it un­necessary to decide the issue where the hospital and psychiatrist did not breach a duty of care that may have existed - See paragraphs 52 to 94.

Cases Noticed:

Lawson v. Wellesley Hospital, [1978] 1 S.C.R. 893; 15 N.R. 271, refd to. [para. 51].

Holgate and another v. Lancashire Mental Hospitals Boards, Gill and Robertson, [1937] 4 All E.R. 19, refd to. [para. 51].

Home Office v. Dorset Yacht Co. Ltd., [1970] 2 All E.R. 294 (H.L.), refd to. [para. 51].

Villemure v. Turcot et al., [1973] S.C.R. 716, refd to. [para. 52].

Jinks v. Cardwell et al. (1987), 39 C.C.L.T. 168 (Ont. S.C.), refd to. [para. 52].

Stewart v. Extendicare Ltd., [1986] 4 W.W.R. 559; 48 Sask.R. 86 (Q.B.), refd to. [para. 52].

University Hospital Board v. Lepine, [1966] S.C.R. 561, refd to. [para. 52].

Kalogeropoulos and Millette v. Coté, Min­ister of Highways and Ontario Provincial Police Force (1974), 3 N.R. 341; 51 D.L.R.(3d) 244 (S.C.C.), refd to. [para. 52].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), refd to. [para. 54].

Tarasoff v. Regents of the University of California et al. (1976), 17 Cal. 3d 358, refd to. [para. 56].

Perreira v. State of Colorado (1989), 768 P.2d 1198, refd to. [para. 58].

Peabody v. Parkinson Cinbaland Co., [1984] 3 All E.R. 529, refd to. [para. 63].

W. v. Edgell et al., [1989] 1 All E.R. 1089, refd to. [para. 63].

Angus and J.A. Angus Investments Ltd. v. Edmonton (City) (1977), 3 A.R. 116 (C.A.), refd to. [para. 67].

Crits and Crits v. Sylvester et al. (1956), 1 D.L.R.(2d) 502, affd. [1956] S.C.R. 991, refd to. [para. 70].

Haines v. Bellissimo et al. (1977), 18 O.R.(2d) 177 (H.C.), refd to. [para. 70].

Buckley and Toronto Transportation Com­mission v. Smith Transport Ltd., [1946] O.R. 798 (C.A.), refd to. [para. 103].

Beal v. Beal (1982), 52 N.S.R.(2d) 550; 106 A.P.R. 550 (T.D.), refd to. [para. 103].

White v. White, [1949] 2 All E.R. 339 (C.A.), refd to. [para. 105].

Breunig v. American Family Insurance Co. (1970), 173 N.W. 2d 619 (Wis. S.C.), refd to. [para. 109].

Slattery v. Haley (1922), 52 O.L.R. 95 (C.A.), refd to. [para. 111].

R. v. Goodson, [1948] 4 D.L.R. 33 (S.C.C.), refd to. [para. 111].

Hagg v. Bohnet (1962), 38 W.W.R.(N.S.) 679 (B.C.C.A.), refd to. [para. 111].

Boomer v. Penn (1965), 52 D.L.R.(2d) 673 (Ont. C.A.), refd to. [para. 111].

Roberts and others v. Ramsbottom, [1980] 1 All E.R. 7, refd to. [para. 111].

Waugh v. James K. Allan Ltd., [1964] 2 Lloyd's Rep. 1, refd to. [para. 111].

R. v. Hill, [1975] 2 S.C.R. 402; 6 N.R. 413, refd to. [para. 116].

Thornton et al. v. Board of School Trustees of School District No. 57 et al. (1978), 19 N.R. 552; 83 D.L.R.(3d) 488 (S.C.C.), refd to. [para. 174].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 174].

Cunningham v. Harrison, [1973] 3 All E.R. 463 (C.A.), refd to. [para. 174].

Donnelly v. Joyce, [1973] 3 All E.R. 475 (C.A.), refd to. [para. 174].

Taylor v. Bristol Omnibus Co., [1975] 2 All E.R. 1107 (C.A.), refd to. [para. 174].

Lang v. Ballash (1989), 101 A.R. 234; 75 Alta. L.R.(2d) 306 (C.A.), refd to. [para. 174].

Mitchell v. U-Haul Co. of Canada Ltd. (1986), 73 A.R. 91; 47 Alta. L.R.(2d) 193 (Q.B.), refd to. [para. 174].

Hughes v. Lord Advocate, [1963] A.C. 837, refd to. [para. 175].

School Division of Assiniboine No. 3 and Hoffer et al. v. Greater Winnipeg Gas Co. Ltd., [1971] 4 W.W.R. 746, refd to. [para. 175].

Overseas Tankship (U.K.) v. Morts Dock & Engineering Co. (The Wagon Mound), [1961] A.C. 388, refd to. [para. 175].

Abbott et al. v. Kasza & Ace Construction Co. Ltd., [1976] 4 W.W.R. 20 (Alta. C.A.), refd to. [para. 175].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 215].

Mandzuk v. Vieira and Insurance Corp. of B.C., [1989] 5 W.W.R. 131; 89 N.R. 394 (S.C.C.), refd to. [para. 216].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 216].

Scarff v. Wilson et al., [1989] 6 W.W.R. 500; 100 N.R. 189 (S.C.C.), refd to. [para. 218].

Schrump et al. v. Koot et al. (1978), 82 D.L.R.(3d) 553 (Ont. C.A.), refd to. [para. 227].

Davies v. Taylor, [1974] A.C. 207 (H.L.), refd to. [para. 227].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 232].

Campbell's Estate v. Calgary Power Ltd. et al. (1986), 70 A.R. 161 (Q.B.), refd to. [para. 232].

Malat v. Bjornson (No. 2), [1979] 4 W.W.R. 673 (B.C.S.C.), refd to. [para. 240].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 247].

Pendergras and Presley v. McGrath and Tilden Rent A Car Co. (1988), 86 A.R. 291; 60 Alta. L.R.(2d) 276 (C.A.), refd to. [para. 247].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 248].

Peacock v. Mills (1965), 50 W.W.R.(N.S.) 626 (Alta. C.A.), refd to. [para. 251].

O'Hara et al. v. Belanger, [1990] 1 W.W.R. 214; 98 A.R. 86 (Q.B.), refd to. [para. 251].

Chase v. Mehta (1984), 32 Man.R.(2d) 26 (Q.B.), refd to. [para. 252].

Hohol v. Pickering (1984), 35 A.R. 181 (C.A.), refd to. [para. 258].

Vana v. Tosta (1967), 66 D.L.R.(2d) 97 (S.C.C.), refd to. [para. 260].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 323; 24 A.R. 620, refd to. [para. 261].

Lee et al. v. Leeming (1985), 58 A.R. 204 (Q.B.), refd to. [para. 262].

Statutes Noticed:

Child Welfare Act, S.A. 1984, c. 8.1, generally [para. 165].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 69, sect. 71(1), sect. 109(1) [para. 13]; sect. 179 [para. 116].

Maintenance Enforcement Act, S.A. 1985, c. M-0.5, generally [para. 165].

Mental Health Act, R.S.A. 1980, c. M-13, sect. 14, sect. 18 [para. 5].

Motor Vehicle Administration Act, R.S.A. 1980, c. M-22, sect. 14(2), sect. 14(3) [para. 64].

Rules of Court (Alta.), rule 964 [para. 165].

Authors and Works Noticed:

Cooper-Stephenson and Saunders, Per­sonal Injury Damages in Canada (1981), pp. 133-143 [para. 174]; 272 [para. 240]; 332, 333 [para. 226].

Fleming, The Law of Torts (7th Ed.), pp. 104 [para. 107]; 208, 209 [para. 174].

Linden, Canadian Tort Law (4th Ed.), pp. 38, 39, 40, 132, 133 [para. 108].

MacKay, R.D., Article (1990), 30 Med. Sci. Law 52, p. 56 [para. 59].

McLachlin, B., What Price Disability? A Perspective on the Law of Damages for Personal Injury (1981), 59 Can. Bar Rev. 1, generally [para. 248].

Robertson, Mental Disability and the Law in Canada, p. 202 [para. 108].

Torts: Insanity As Defence, 49 A.L.R.(3d) 193, p. 193 [para. 109].

Venables, H.D.S., A Guide to the Law Affecting Mental Patients, pp. 78, 79 [para. 69].

Winfield and Jolowicz on Tort (12th Ed.), p. 640 [para. 174].

Winfield and Jolowicz on Tort (13th Ed.), ch. 5 [para. 60].

Counsel:

H.W. Veale, Q.C., and E.K. Boddy, for the plaintiffs;

R.O. Langley and S.L. May, for the de­fendant, Trikha;

W.M. Wintermute, Q.C., and C.A. Kent, for the defendant, Royal Alexandra Hos­pital;

A.L. Friend, M.D. Romanow and R.M. Carter, for C. Mathew Yaltho.

This case was heard before Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 27, 1991.