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A Tough Pill to Swallow 173
down his neighbour’s house because he created a bonfire too close to it, (a
foreseeably dangerous activity) there would be no reason to exclude tortious (or
possibly criminal) liability merely because he has a mental illness. Why then
should it be any different if instead the person went off his medication, knowing
that it might result in a violent breakdown
It might be argued that, for sympathetic and compassionate reasons, the
mentally ill should not be held to have a duty of care owed to others which
involves them mitigating their own mental illness, primarily because it might
practically be a “symptom” of the disorder that they have difficulty adhering to
their medication. This is not a strong argument. In Fiala v Cechmanek 108 , a civil
negligence action was brought against the defendant for his role in a motor
vehicle accident. The defendant had bipolar disorder but he did not know it. It
had not been diagnosed, nor had he experienced any symptoms of it. One day
while out for a run he had a severe manic episode in which he ran into traffic,
banged on the window of a passing car, jumped into the car through the sun roof,
and proceeded to strangle the driver, causing her to crash into another car. Firstly,
it must be noted that in Fiala, the Court was discussing the appropriate standard
of care owed by the defendant. Based on the fact that a discussion about standard
of care was even occurring, the Court must have been satisfied that there was a
duty of care owed by him to the general public. The Court held that there had
been no violation of the standard of care on the part of the defendant; but it did
so noting the fact that the defendant was not aware of his mental disorder and
therefore could obviously not foresee the results of failing to attend to it. 109
The Court set out its test for avoiding tortious liability for a defendant who
was “afflicted [by a mental illness] suddenly and without warning.” The defendant
would have to prove either that he had no capacity to appreciate his duty of care
at the time or that he could not discharge his duty of care as a result of the mental
illness. 110 The result of the application of the test is highly analogous to the NCR
test itself, but importantly, the Court carefully noted that it can only be applied
where the mental deterioration was sudden and without warning, which by
negative inference one can interpret to mean that had the person been aware of
their mental disorder (if it was not sudden nor without warning) then there would
be liability. Notably, the Court directed its attention toward the standard of care,
simply dispensing with policy concerns over whether a duty of care was owed by
the mentally ill defendant.
Moreover, the “sympathy” policy argument to exclude civil liability for
reckless non-adherence to anti-psychotic medication was explicitly rejected in
Wenden v Trikha. 111 In that case, the defendant caused a car accident by driving
108
109
110
111
2001 ABCA 169, 201 DLR (4th) 680 [Fiala].
Ibid at para 49.
Ibid.
116 AR 81, 8 CCLT (2d) 138, affirmed 135 AR 382 (CA), at paras 140-144.