Case Comment on the Alberta Court of Appeal decision in McLaren v. McLaren Estate, 2011 ABCA 299
By Cheryl Yingst Bartel and Brent L. Handel, Q.C.
We took this case to the Alberta Court of Appeal and one issue at appeal was the consideration, if any, to give to government funded care costs when considering the award for future treatment costs. Unfortunately, the Court of Appeal failed to explain why the funding risk was expected to be “modest”, when the same Court had accepted in Cherwoniak v. Walker, supra, that a Trial Judge was entitled to entirely disregard the provision of government services in making an award of cost of future care, and several lower Courts had also made this determination.
In rejecting this ground of appeal, the Court of Appeal, McLaren Estate, supra, now stands in contrast to the Court of Appeal’s decision in Cherwoniak v.Walker, supra. How the two decisions can be reconciled is – unfortunately – left for another day. An interesting question is whether the same result would have been reached had Mrs. McLaren been paying for private psychological services at the time of the trial, instead of accessing those publicly available, but that too is left for another day.
Other issues include the duty to supervise learning drivers and the importance of causation in any negligence case. In summary, McLaren Estate, supra, stands as an important case with respect to the duty of supervision of learning drivers. As well, it is an important reminder to counsel that merely to establish negligent acts is not sufficient to ground negligence. A further inquiry must be made as to whether those actions caused or contributed to the injuries which ultimately occurred. This analysis is particularly crucial when the duty to supervise the allegedly negligent actions of another is at issue. Finally, this decision is also important for its lack of clarity in the interplay between future cost of care awards in the face of government funded outpatient programs.
Brent L. Handel, Q.C. was counsel at trial for Mrs. McLaren and co-counsel before the Alberta Court of Appeal. He practices with Handel Law Firm in Red Deer in the area of civil litigation with a focus on catastrophic personal injury claims and wrongful death claims.
Cheryl Yingst Bartel was co-counsel for Mrs. McLaren before the Alberta Court of Appeal in McLaren v. McLaren Estate. Cheryl practices as an independent legal consultant, and provides senior research, writing and analysis services to lawyers. She is also named to both provincial and federal rosters as a mediator and adjudicator