Wenden v. Trikha et al., (1992) 124 A.R. 1 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 06, 1992
• Citations: (1992), 124 A.R. 1 (QB)

Wenden v. Trikha (1992), 124 A.R. 1 (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 Wenden (plaintiffs) v. Anil Kumar Trikha, Royal Alexandra Hospitals 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.

March 6, 1992.

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, in a judgment reported 116 A.R. 81, allowed the action against Trikha, but dismissed the action against the psychiatrist and hospital. The court assessed damages accordingly. The matter of costs was not dealt with.

The Alberta Court of Queen's Bench subsequently resolved the costs issues.

Practice - Topic 7006

Costs - Party and party costs - Purpose of - The Alberta Court of Queen's Bench stated that "[i]n Alberta, except in unique circumstances, party and party costs will not approach indemnification of the suc­cessful party and thus it is more accurate to describe the awarding of costs as a contribution toward the successful party's expenses in prosecuting or defending the action." - See paragraph 22.

Practice - Topic 7020

Costs - Party and party costs - Entitle­ment to - Successful party - General - The Alberta Court of Queen's Bench stated that "unless a successful litigant has paid or has become liable to pay the legal fees of and/or disbursements incurred by his or her counsel, he or she is not entitled to recover them by way of party and party costs." - See paragraph 22.

Practice - Topic 7029.6

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Legal expense paid by third party - The plaintiff's action was dismissed as against the defendant doctor - The doctor's defence was funded by the Canadian Med­ical Protective Association, which con­trolled the defence - The Association did not provide full indemnification and, ac­cordingly, had no right of subrogation - The doctor's liability to the law firm he retained for outstanding fees and disburse­ments was unaffected by his agreement with the Association - The Alberta Court of Queen's Bench held that the third party assistance did not disentitle the doctor to taxable party and party costs, where he remained liable to pay the law firm - See paragraphs 3 to 35.

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock or Sanderson order - Where success divided among defendants - The plaintiff was struck and injured by a motor vehicle driven by a psychiatric patient who eloped from the hospital - The plaintiff sued the patient, his doctor and the hospi­tal - The Alberta Court of Queen's Bench found the patient negligent, but dismissed the action as against the doctor and hospi­tal - The plaintiff acted reasonably and properly in adding the doctor and hospital as defendants - The court granted a Sand­erson order, making the patient directly liable for the doctor's and hospital's taxed party and party costs - See paragraphs 37 to 49.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff made an offer to settle three days before trial, to be withdrawn at 9:45 a.m. on the day of trial - The trial was to com­mence at 1:45 p.m. - The offer was rejected and the plaintiff recovered more than the offer at trial - Rule 174(2) pro­vided that a plaintiff receiving more at trial than the offer was to receive double costs unless special reasons existed for not making that order - The Alberta Court of Queen's Bench held that the withdrawal of the offer before the trial commenced con­stituted a special reason not to award the plaintiff double costs under rule 174 - See paragraphs 50 to 65.

Cases Noticed:

Qureshi v. Nickerson (1991), 47 C.P.C.(2d) 69 (B.C.C.A.), refd to. [para. 3].

Harold v. Smith (1860), 5 H. & N. 381; 157 E.R. 1229, refd to. [para. 22].

Nicholls v. Richmond et al., [1985] 3 W.W.R. 543 (B.C.S.C.), refd to. [para. 22].

Brady (W.H.) Co. v. Letraset Canada Ltd., [1991] 2 F.C. 226; 122 N.R. 161 (F.C.A.), refd to. [para. 24].

Adams v. London Improvement Motor Coach Builders Ltd., [1920] All E.R. Rep. 340 (C.A.), refd to. [para. 25].

Armand v. Carr et al., [1927] S.C.R. 348, refd to. [para. 29].

R. v. Miller, [1983] 3 All E.R. 186, refd to. [para. 30].

Broderick et al. v. Fierro et al., [1833] 1 D.L.R. 476 (Ont. S.C.), refd to. [para. 31].

R. v. Reda Corporation Ltd., [1991] 2 N.Z.L.R. 122, refd to. [para. 31].

Winter v. Dewar, [1929] 1 D.L.R. 273 (B.C.S.C.), refd to. [para. 32].

Hall v. Commissioners of Sumas Drainage, [1923] 3 W.W.R. 164 (B.C.C.A.), refd to. [para. 33].

Hamburg-American Packet Company v. R. (1907), 39 S.C.R. 621, dist. [para. 33].

Esquimalt and Nanaimo Railway Co. v. Hoggan (1908), 9 W.L.R. 313 (B.C.C.A.), dist. [para. 33].

University of New Brunswick Student Union Inc. et al. v. Smith (S.) et al. (1988), 84 N.B.R.(2d) 292; 214 A.P.R. 292 (C.A.), refd to. [para. 34].

Bullock v. London General Omnibus Co., [1907] 1 K.B. 264 (C.A.), refd to. [para. 42].

Sanderson v. Blyth Theatre Company, [1903] 2 K.B. 533 (C.A.), refd to. [para. 42].

Besterman v. British Motor Cab Company Ltd., [1914] 3 K.B. 181, refd to. [para. 46].

McLeod v. Great Western Distributors et al., [1941] 3 W.W.R. 827 (Alta. Dist. Ct.), refd to. [para. 47].

Haibloom v. Rocky Mountain Tours Transport Limited (1951), 3 W.W.R.(N.S.) 201, refd to. [para. 47].

Hornburg and Hornburg v. Toole, Peet & Co. (1980), 28 A.R. 546 (Q.B.), refd to. [para. 47].

Goldsworthy v. Brickell, [1987] 2 W.L.R. 133 (Eng. C.A.), refd to. [para. 49].

Upper Lakes Shipping Ltd. v. St. Law­rence Cement Inc. et al. (1988), 20 C.P.C. 270 (Ont. H.C.), refd to. [para. 49].

Badger and Surkan v. Holy Family Hospi­tal, [1973] 1 W.W.R. 302, refd to. [para. 49].

Whittle v. Davies (1988), 104 A.R. 336; 55 Alta. L.R.(2d) 391 (C.A.), refd to. [para. 55].

Davis v. Caproco Corrosion Prevention Ltd. (1987), 76 A.R. 314; 50 Alta. L.R.(2d) 23 (C.A.), refd to. [para. 55].

Brown's Estate v. Young (1990), 107 A.R. 134 (C.A.), refd to. [para. 60].

McCardell's Estate v. Cushman (1990), 104 A.R. 23 (Q.B.), refd to. [para. 63].

Brown and 154360 Alberta Ltd. v. Short­reed Estate and Shortreed Shocter & Co. (1988), 86 A.R. 265; 56 Alta. L.R.(2d) 376 (C.A.), refd to. [para. 64].

Petrogas Processing Ltd. v. Westcoast Transmission Company Limited (1990), 73 Alta. L.R.(2d) 246 (Q.B.), refd to. [para. 68].

Canada Deposit Insurance Corporation v. Canadian Commercial Bank, [1987] 3 W.W.R. 160; 76 A.R. 271 (Q.B.), refd to. [para. 68].

Vanderclay Development Company v. Inducon Engineering Ltd. (1969), 1 D.L.R.(3d) 337, refd to. [para. 68].

Statutes Noticed:

Canadian Medical Protective Association, An Act to Incorporate, 3-4 Geo., c. 91, sect. 4(c) [para. 10].

Contributory Negligence Act, R.S.A. 1980, c. C-23, sect. 2(2) [para. 38].

Court of Queen's Bench Act, R.S.A. 1980, c. C-29, sect. 18, sect. 19 [para. 44].

Rules of Court (Alta.), rule 32, rule 36 [para. 37]; rule 77(1) [para. 41]; rule 169 [para. 56]; rule 170(1), rule 170(2), rule 170(5) [para. 52]; rule 174(2) [para. 53]; rule 600(1) [para. 20]; rule 601 [para. 44]; rule 605(1) [para. 7]; rule 605(3) [para. 66]; rule 642 [para. 8].

Tort-Feasors Act, R.S.A. 1980, c. T-6, sect. 3(1)(c) [para. 38].

Authors and Works Noticed:

Cordery's Law Relation to Solicitors (8th Ed.), p. 60 [para. 31].

Hanson, Brian G., Article (1976), 24 Chitty's Law Journal (No. 2) 65, pp. 65, 66 [para. 48].

Orkin, The Law of Costs (2nd Ed.), gen­erally [para. 34].

Counsel:

H.W. Veale, Q.C., and E.L. Boddy, for the plaintiff;

J.M. Guthrie, for the defendant, Royal Alexandra Hospital;

R.M. Carter, for the defendant, Yaltho;

R.O. Langley, for the defendant, Trikha.

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 March 6, 1992.