Boertien v. Carter et al., (1995) 135 Nfld. & P.E.I.R. 91 (PEITD)

• Judge: Jenkins, J.
• Case Date: October 16, 1995
• Jurisdiction: Prince Edward Island
• Citations: (1995), 135 Nfld. & P.E.I.R. 91 (PEITD)

Boertien v. Carter (1995), 135 Nfld. & P.E.I.R. 91 (PEITD);

    420 A.P.R. 91

MLB headnote and full text

Jean Boertien (plaintiff) v. Paul Carter (defendant) and Eastern Kings Arena Association (third party)

(GSC-9011)

Indexed As: Boertien v. Carter et al.

Prince Edward Island Supreme Court

Trial Division

Jenkins, J.

October 16, 1995.

Summary:

Boertien sued Carter for damages for personal injuries arising from a motor vehicle accident. Cater submitted that piled snowbanks and icy conditions near the entrance to an arena contributed to the acci­dent. Carter added the lessee of the arena as a third party. The third party applied for a determination of whether Carter's third party claim was barred by the Statute of Limita­tions.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported 131 Nfld. & P.E.I.R. 8; 408 A.P.R. 8, held that Carter's third party claim was statute barred. The third party was granted an order for summary judgment and Carter's third party claim was dismissed.

The Prince Edward Island Supreme Court, Trial Division, allowed Boertien's action, apportioned liability and assessed damages accordingly.

Damage Awards - Topic 112

Injury and death - Head injuries - Teeth -[See Damage Awards - Topic 130 ].

Damage Awards - Topic 116

Injury and death - Head injuries - Mouth - [See Damage Awards - Topic 130 ].

Damage Awards - Topic 130

Injury and death - Leg injuries - Knee - A 22 year old plaintiff suffered a cut lip and loosened teeth, which healed in the usual course, and a chondromalacia patella to one knee which required orthoscopic surgery - Real and substantial likelihood of further surgery - Has caused some increasing pain and suffering and loss of amenities and functional impairment - Now 30 years old - Active and recre­ationally athletic - A person of positive spirit and reasonable disposition - A mother - Prognosis of no improvement and probable degeneration - The Prince Edward Island Supreme Court, Trial Divi­sion, awarded the plaintiff $45,000 nonpe­cuniary damages for pain and suffering and loss of amenities - See paragraphs 63 to 70.

Damage Awards - Topic 453

Injury and death - Special damage awards - Loss of wages - In 1987, a 22 year old plaintiff was injured in a motor vehicle accident - The plaintiff claim loss of past income from the date of accident to the date of trial - Prior to the accident she worked as a waitress - Showed a propen­sity for work and business - In the year prior to the accident she earned $16,500 from April until year end - After the accident she was unable to work as a waitress - The Prince Edward Island Supreme Court, Trial Division, concluded that but for the injuries suffered, the plain­tiff would have had approximately the same level of income she would have earned had she continued working as a waitress and awarded $29,900 in damages for loss of past income - See paragraphs 73 to 79.

Damage Awards - Topic 457

Injury and death - Special damage awards - Cost of therapy - An injured plaintiff sought recovery of expenses incurred for gym membership and mileage to carry out her muscle strengthening program - The Prince Edward Island Supreme Court, Trial Division, concluded that although the exercise program was reasonably necessary and unavailable in the plaintiff's commun­ity, the defendants fitness program exceeded the plaintiff's responsibility - The court allowed the plaintiff $250 per year until the date of judgment - See paragraph 72.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care - An injured plaintiff sought damages for cost of future care - She was required to maintain an exercise program in order to strengthen her leg and lessen the workload for her injured knee - The Prince Edward Island Supreme Court, Trial Division, concluded that the plaintiff had demonstrated a special need for a continuing strengthening program which arose directly from the injury and awarded her $7,000 - See paragraphs 111 to 113.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - An injured plaintiff sought damages for loss of earn­ing capacity - The Prince Edward Island Supreme Court, Trial Division, concluded that there was a real and substantial risk that the plaintiff would suffer a marginal disadvantage (possibly 10-15% of her potential) in the workplace caused by the accident, which would result in loss op­portunity and diminution of her income - On that basis, the court assessed her dam­ages for loss of future earning capacity at $50,000 - See paragraphs 102 to 109.

Damages - Topic 1410

Special damages - Loss of wages - Gen­eral - The Prince Edward Island Supreme Court, Trial Division, stated that in deter­mining a plaintiff's pretrial loss of earn­ings, a court must attribute appropriate weight to the plaintiff's past income exper­ience and his or her potential - See para­graph 76.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The Prince Edward Island Supreme Court, Trial Division, stated that "[a] loss of earning capacity, if proven, is compensable. The amount of damages is related to the degree of risk and future contingencies are considered. Consider­ation of this loss involves assessment of the plaintiff's earning capacity if she did not suffer from her present condition, assessment of her actual earning capacity with her present condition, and measure­ment of the difference. Consideration is given to the plaintiff's past employment and business income experience and her employment and business prospects in all her circumstances." - See paragraph 102.

Damages - Topic 1691

Deductions for payments or assistance by third parties - General - The Prince Edward Island Supreme Court, Trial Divi­sion, reviewed the development and the current state of the rule against deductibility of collateral benefits within the calculation of pretrial loss of income - The court concluded that unemployment insurance benefits received by the plaintiff in the calculation of pretrial loss were deductible - See paragraphs 80 to 100.

Damages - Topic 1764

Deductions for payments or assistance by third parties - By statute or government - Unemployment insurance benefits - [See Damages - Topic 1691 ].

Interest - Topic 5001

Interest as damages - Prejudgment inter­est - General principles - The Prince Edward Island Supreme Court, Trial Divi­sion, reviewed the policy objective of prejudg­ment interest and the relevant juris­prudence and legislation - The court opined that revision of the current legisla­tion was necessary to remove constraints, perceived or real, over judicial discretion to award prejudgment interest at the ap­propriate applicable rate for each case - The court stated that elimination of s. 50(2) of the Supreme Court Act was espe­cially necessary to remove the overstate­ment for the effect of inflation and conse­quent denial of some components of inter­est on awards of nonpecuniary damages - See paragraphs 115 to 132.

Interest - Topic 5004

Interest as damages - Prejudgment inter­est - General principles - Discretion of judge - [See Interest - Topic 5001 and first Interest - Topic 5009 ].

Interest - Topic 5009

Interest as damages - General principles - Prejudgment interest - Calculation of - A plaintiff sought prejudgment interest from February 1988, the date when she notified the defendant of her claim - Prior to 1988, prejudgment interest was matter of judicial discretion - The Supreme Court Act (P.E.I.) was amended in 1988 to sti­pulate a fixed rate below prime - Section 52 reserved discretion to vary the rate - In 1995, s. 50(2) was added which provided that the rate for nonpecuniary damages was to be the discount rate under the Supreme Court Rules - Rule 53.09 only prescribed a discount rate of 2.5% for future pecuniary damages - The Prince Edward Island Supreme Court, Trial Divi­sion, concluded that s. 50(2) became law after trial, was not retroactive and did not apply - The 1988 provisions did not apply as the plaintiff gave notice of the claim before they became law - Alternatively s. 50(2) applied - Accordingly, the court exercised its judicial discretion to deter­mine the proper rate of interest - See paragraphs 115 to 137.

Interest - Topic 5009

Interest as damages - General principles - Prejudgment interest - Calculation of - A plaintiff sought prejudgment interest from February 1988, the date when she notified the defendant of her personal injury claim - The Prince Edward Island Supreme Court, Trial Division, exercised its judicial discretion to award prejudgment interest at 10% per annum compounded annually on all damages except nonpecuniary damages - The court adjusted the interest on non­pecuniary damages for actual inflation during the prejudgment period to avoid double compensation and awarded 6.75% compounded annually - See paragraphs 115 to 137.

Interest - Topic 5010

Interest as damages - Prejudgment interest - General principles - Calculation of interest - Simple or compound - [See second Interest - Topic 5009 ].

Interest - Topic 5011

Interest as damages - Prejudgment interest - General principles - Interest on nonpe­cuniary general damages - [See Interest - Topic 5001 and second Interest - Topic 5009 ].

Interest - Topic 5137

Interest as damages - Prejudgment interest - Torts - Negligence - Personal injuries - [See second Interest - Topic 5009 ].

Torts - Topic 394

Negligence - Motor vehicle - Standard of care of driver - On braking - [See Torts - Topic 416 ].

Torts - Topic 416

Negligence - Motor vehicle - Rules of the road - Right of way - Entering highway - A car driven by Carter emerged from an arena's driveway and entered onto the highway into the path of Boertien's car - The front of Boertien's car hit the right front of Carter's car - Boertien sued Carter - The Prince Edward Island Supreme Court, Trial Division, concluded that the accident occurred as a result of Carter's negligence - Carter was driving too fast, failed to exercise adequate caution by braking properly and in time to stop before entering the highway, entered the highway in the face of oncoming traffic and failed to yield the right of way - Carter failed to rebut the statutory presumption that the loss or damage did not arise through his negligence or improper conduct - See paragraphs 1 to 16.

Torts - Topic 418

Negligence - Motor vehicle - Rules of the road - Right of way - Duty to yield - [See Torts - Topic 416 ].

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - [See Torts - Topic 416 ].

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - [See Torts - Topic 416 ].

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - Section 286 of the Prince Edward Island Highway Traffic Act stipulated that when loss or damage was sustained by any person by reason of a motor vehicle upon a highway the onus of proof that the loss or damage did not arise through the negligence or improper con­duct of the owner or driver is upon the owner or driver - The Prince Edward Island Supreme Court, Trial Division, discussed the statutory burden, stating that s. 286 was not limited to pedestrian injury situations - See paragraphs 13 to 15.

Torts - Topic 3572

Occupiers' liability for dangerous premises - Negligence of occupier - Duty of care - A defendant's car suddenly emerged from an arena's driveway into the path of the plaintiff's car - The defendant added the arena as a third party, asserting the arena breached its affirmative duty under the Occupiers' Liability Act to take reasonable care respecting people on its premises - The defendant asserted that the arena's lot and driveway were unusually icy and slippery and represented an unusual dan­ger, the snowbanks blocked the view and the arena did not have a system to control such conditions - The Prince Edward Island Supreme Court, Trial Division, concluded that the arena had fulfilled its duty - Further, occupier's liability did not relieve the defendant from the obligation to take reasonable care for the safety of himself and others - See paragraphs 17 to 26.

Torts - Topic 3613

Occupiers' liability for dangerous premises - Negligence of particular occupiers - Parking lots - [See Torts - Topic 3572 ].

Torts - Topic 6600

Defences - Contributory negligence - General principles - The Prince Edward Island Supreme Court, Trial Division, reviewed the law respecting apportionment of fault for failure to wear a seat belt, stating that the degree of contributory negligence is a question of fact and fault should be apportioned accordingly - See paragraphs 28 to 37.

Torts - Topic 6610

Defences - Contributory negligence - Motor vehicle accidents - Failure to wear seat belt - A plaintiff was injured in a motor vehicle accident - The defendant asserted that the plaintiff contributed to her injuries by not wearing a seat belt - If the plaintiff had been wearing a seat belt she would not have hit her head and her knee would have hit the dash with less force - Most of the damages flowing from the injury resulted from the injury to the knee - The Prince Edward Island Supreme Court, Trial Division, concluded that 20% of the fault should be apportioned to the plaintiff for her failure to wear a seat belt - See paragraphs 28 to 39.

Torts - Topic 6630

Defences - Contributory negligence - Failure to use safety equipment - Seat belts - [See Torts - Topic 6610 ].

Torts - Topic 6775

Defences - Inevitable accident - General - The Prince Edward Supreme Court, Trial Division reviewed the concept of inevi­table accident - See paragraph 17.

Torts - Topic 6777

Defences - Inevitable accident - What constitutes - Boertien was driving on the highway - The road surface was clear and the driving conditions good - A car driven by Carter suddenly emerged from an are­na's driveway into the path of Boertien's car - The front of Boertien's car hit the right front of Carter's car - Carter was familiar with the driving conditions - Carter had travelled to the arena regularly - Boertien sued Carter - Carter pleaded inevitable accident because of the treach­erous driving conditions - The only evi­dence that ice conditions on the arena's entrance were bad came from Carter - The Prince Edward Island Supreme Court, Trial Division, concluded that Carter had not established that the accident was inevi­table, or that the collision could not have been avoided - See paragraphs 17, 18.

Cases Noticed:

Matheson v. Coughlin et al. (1990), 90 Nfld. & P.E.I.R. 168; 280 A.P.R. 168; 25 M.V.R.(2d) 294 (P.E.I.C.A.), consd. [para. 14].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 21].

McAlpine v. Mahovlich (1979), 9 C.C.L.T. 241 (Ont. C.A.), refd to. [para. 22].

Gould v. Perth (County) (1983), 149 D.L.R.(3d) 443 (Ont. H.C.), refd to. [para. 23].

Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and Ontario Provincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341 51 D.L.R.(3d) 244, refd to. [para. 23].

R. v. Cote - see Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and Ontario Provincial Police Force.

Newell v. Morrison, [1954] O.R. 656 (C.A.), refd to. [para. 25].

Patterson v. MacKenzie (1972), 5 N.B.R.(2d) 176 (C.A.), consd. [para. 25].

Trainor v. Topic (1993), 1 P.E.I.R. 186; 105 Nfld. & P.E.I.R. 104; 331 A.P.R. 104 (P.E.I.T.D.), consd. [para. 33].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, consd. [para. 34].

Yuan v. Farstad (1967), 66 D.L.R.(2d) 295 (B.C.S.C.), refd to. [para. 35].

Smith v. Moore (1984), 59 N.B.R.(2d) 123; 154 A.P.R. 123 (T.D.), refd to. [para. 37].

Warman v. McNeill (1993), 83 Man.R.(2d) 315; 36 W.A.C. 315 (C.A.) affing., (1991), 77 Man.R.(2d) 43 (Q.B.), consd. [para. 68].

McInnis v. McLeod (1990), 111 A.R. 67 (Q.B.), consd. [para. 68].

Heusdens v. Bertrand, [1992] B.C.J. No. 1708 (S.C.), consd. [para. 69].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, consd. [para. 81].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, dist. [para. 81].

Cunningham v. Wheeler - see Cooper v. Miller.

Bradburn v. Great Western Railway Co., [1874-80] All E.R. Rep. 195, consd. [para. 86].

Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), consd. [para. 90].

Parry v. Cleaver, [1969] 1 All E.R. 555 (H.L.), consd. [para. 90].

Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654; 37 D.L.R.(3d) 229, dist. [para. 90].

Guy v. Trizec Equities Ltd., [1979] 2 S.C.R. 756; 27 N.R. 301; 32 N.S.R.(2d) 345; 54 A.P.R. 345; 99 D.L.R.(3d) 243, dist. [para. 90].

Boarelli v. Flannigan (1973), 36 D.L.R.(3d) 4 (Ont. C.A.), not folld. [para. 90].

Bourgeois v. Tzrop (1957), 9 D.L.R.(2d) 214 (N.B.C.A.), not folld. [para. 90].

Ratych v. Bloomer (1987), 40 D.L.R.(4th) 180 (Ont. H.C.), refd to. [para. 90].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 99].

Cairns v. Harris, [1994] 1 P.E.I.R. 53; 117 Nfld. & P.E.I.R. 216; 365 A.P.R. 216 (P.E.I.C.A.), consd. [para. 104].

Manzer v. Lines and Milner Estate (1990), 98 N.S.R.(2d) 213; 263 A.P.R. 213 (T.D.), consd. [para. 107].

Reynolds v. Paterson, [1992] B.C.J. No. 1566 (S.C.), consd. [para. 107].

Borland v. Muttersbach (1985), 12 O.A.C. 84; 23 D.L.R.(4th) 664 (C.A.), consd. [para. 123].

Graham v. Persyko (1984), 30 C.C.L.T. 85 (Ont. H.C.), consd. [para. 123].

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), consd. [para. 123].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91; 87 D.L.R.(4th) 248 (C.A.), consd. [para. 124].

Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R.(4th) 641 (B.C.C.A.), folld. [para. 124].

Montgomery v. Board of Education of Regional Administrative Unit No. 2 et al. (1995), 127 Nfld. & P.E.I.R. 91; 396 A.P.R. 91 (P.E.I.T.D.), refd to. [para. 126].

Cairns v. Harris (1995), 129 Nfld. & P.E.I.R. 250; 402 A.P.R. 250 (P.E.I.T.D.), refd to. [para. 126].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1 (Ont. C.A.), refd to. [para. 126].

Fenn et al. v. Peterborough (City), Peterborough Utilities Commission and Consumers' Gas Co. (1979), 25 O.R.(2d) 399 (C.A.), affd. [1981] 2 S.C.R. 613; 40 N.R. 425, refd to. [para. 134].

Consumers' Gas Co. v. Peterborough (City) - see Fenn et al. v. Peterborough (City), Peterborough Utilities Commission and Consumers' Gas Co.

Statutes Noticed:

Highway Traffic Act, R.S.P.E.I. 1988, c. H-5, sect. 286 [para. 13].

Occupiers' Liability Act, R.S.P.E.I. 1988, c. O-2, sect. 3 [para. 20].

Supreme Court Act, R.S.P.E.I. 1988, c. S-10, sect. 50(2) [para. 120].

Authors and Works Noticed:

Cooper, K.D., A Collateral Benefits Prin­ciple (1971), 49 Can. Bar Rev. 501, generally [para. 97].

Cooper-Stephenson, K.D., and Saunders, J.B., Personal Injury Damages in Canada (1981), pp. 88 ff. [para. 106]; 150 ff. [para. 107]; 155 [para. 103]; 467 to 482 [para. 90].

Linden, Allen M., Canadian Tort Law (5th Ed.), pp. 254 [para. 17]; 447 to 456 [para. 35].

Phelan, Highway Traffic Law (3rd Ed.), pp. 66 [para. 17]; 161 [para. 14].

Watson and McGowan, Ontario Civil Procedure 1995, pp. 155 to 167 [para. 121].

Counsel:

Patrick L. Aylward and Jennifer L. Haire, for the plaintiff;

Paul J.D. Mullin, Q.C., for the defendant;

Sean J. Casey, for the third party.

This case was heard on March 27 to 31 and April 3, 4, 7 and 10, 1995, before Jenkins, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on October 16, 1995.