Brooks et al. v. Stefura, (1998) 222 A.R. 345 (QB)

• Judge: Belzil, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 03, 1998
• Citations: (1998), 222 A.R. 345 (QB)

Brooks v. Stefura (1998), 222 A.R. 345 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. JN.097

Margaret Adele Brooks, Margaret Adele Brooks as Administratrix of the Estate of Donald Gordon Brooks, deceased, Meghan Lesley Brooks, an infant, by her next friend Margaret Adele Brooks and Daniel Cameron Thomas Brooks, an infant, by his next friend Margaret Adele Brooks (plaintiffs) v. Michael James Stefura also known as Mike Jimmie Stefura (defendants)

(Action No. 9203 16168)

Indexed As: Brooks et al. v. Stefura

Alberta Court of Queen's Bench

Judicial District of Edmonton

Belzil, J.

June 5 and July 3, 1998.

Summary:

Brooks was killed in a collision with Stefura. Brooks' widow and two children sued under the Fatal Accidents Act. They also made a dependency claim and a loss of earnings claim under the Survival of Actions Act.

The Alberta Court of Queen's Bench allowed the action. The court determined damages. Subsequently, the court issued supplementary reasons dealing with prejudg­ment interest and costs (see paragraphs 287 to 307).

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - The plaintiffs sued the defendant as the result of a motor vehicle accident - Following the accident, blood samples were taken from the defen­dant - The samples showed that the de­fendant had a blood alcohol level of 0.103 - The defendant applied to have the certi­ficate of analysis excluded from evidence under s. 24(2) of the Charter - The Alberta Court of Queen's Bench held that the Charter did not apply where the action was between private individuals - Fur­ther, the court held that the defendant's Charter rights were not breached where hospital staff took the blood samples and conducted the testing for medical purposes - See paragraphs 39 to 57.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - [See Civil Rights - Topic 1217 ].

Damage Awards - Topic 80

Injury and death - Fatal accidents - Father - [See Damage Awards - Topic 590 ].

Damage Awards - Topic 93

Injury and death - Fatal accidents - Bereavement - [See Damage Awards - Topic 590 ].

Damage Awards - Topic 97

Injury and death - Fatal accidents - Loss of guidance, care and companionship - [See Damage Awards - Topic 590 ].

Damage Awards - Topic 577

Torts - Injury to third parties - Loss of income - Brooks was killed in a motor vehicle accident - His widow and two children sued for loss of earnings under the Survival of Actions Act - The Alberta Court of Queen's Bench determined Brooks' earning until his retirement - The court reduced this amount by 80% to cover the financial obligations that would have arose during his working life - The court further reduced the amount by the depen­dency amounts awarded to the wife and children under the Fatal Accidents Act - See paragraphs 231 to 283.

Damage Awards - Topic 590

Torts - Injury to third parties - Loss of care, guidance and companionship - Brooks was killed in a motor vehicle acci­dent - His widow and two children sued under the Fatal Accidents Act - The evi­dence established that Brooks and his wife were going to be divorced - The parties agreed that the wife was entitled to $30,000 as spousal support ($500/month for five years) and that the children would receive child support under the Federal Child Support Guidelines - The Alberta Court of Queen's Bench awarded the daughter $6,000 and the son $4,000 for future university and technical college costs - The court awarded the children $1,000/year for loss of care, guidance and support until they reached majority - The court held that the father would have played less of a role in the children's life as a result of the divorce - The court awarded each child $1,500 for bereave­ment - See para­graphs 160 to 230.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - [See Damage Awards - Topic 590 and first and second Damages -Topic 2384 ].

Damages - Topic 2379

Torts causing death - Particular damage claims - Loss of housekeeping services - Brooks was killed in a motor vehicle acci­dent - His widow and two children sued under the Fatal Accidents Act - The evi­dence established that Brooks and his wife were going to be divorced - The Alberta Court of Queen's Bench denied a claim for loss of housekeeping services where the parties would be divorced - See paragraphs 203, 228, 229.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - Brooks was killed in a collision with Stefura - His widow and two children brought a Fatal Accidents Act dependency claim and a loss of earnings claim under the Survival of Actions Act - The Alberta Court of Queen's Bench rejected Stefura's argument that Duncan Estate v. Baddeley et al. (Alta. C.A.) stood for the proposition that a claim by the estate for loss of ability to earn was excluded where a dependency claim existed - Counsel for the estate conceded that a dependency claim had to be deducted from the gross value of the estate to prevent double recovery - The court stated that dependency claims had to be viewed as an obligation (i.e., support the deceased would have provided had he survived) - Further, a dependency claim had priority over the estate claim in that if there were no realistic surplus after calcu­lating a dependency claim, there could be no recovery under Duncan v. Baddeley - See paragraphs 245, 246.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - The Alberta Court of Queen's Bench stated that "in calculating an award on the basis of Duncan v. Baddeley, it is necessary to calculate the present value of the de­ceased's obligations over his anticipated working life, using the appropriate dis­count rate. The obligations which must be factored in are income tax, the future cost of 'life,' and the present value of future obligations which would include future debt obligations and the possibility of the deceased having another spouse and/or more children." - See paragraph 263.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - [See Damage Awards - Topic 577 ].

Evidence - Topic 1315

Relevant facts, relevancy and materiality - Body condition - Blood sample to prove impairment by drugs or alcohol - The plaintiffs sued the defendant as the result of a motor vehicle accident - Following the accident, blood samples were taken from the defendant - The samples showed that the defendant had a blood alcohol level of 0.103 - The defendant applied to have the certificate of analysis excluded from evi­dence on the basis that s. 40 of the Hospi­tals Act prohibited production - The Alberta Court of Queen's Bench held that s. 40 did not prohibit the admission of the certificate - See paragraphs 26 to 38.

Hospitals - Topic 467

Operation - Records - Production of records - [See Civil Rights - Topic 1217 and Evidence - Topic 1315 ].

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - Brooks was killed in a motor vehicle accident in 1990 - His widow and children (the plaintiffs) sued the defendant driver - The Alberta Court of Queen's Bench allowed the plaintiffs' action - The defendant argued that the plaintiffs should be denied prejudgment interest because the action took almost eight years to come to trial - The court rejected the argument where the action was a complicated one involving a number of significant issues - It also involved an amendment to pleadings to raise a recent development in the law - The court stated that it would not be fair to penalize the plaintiffs for the resulting delay - See paragraphs 288 to 290.

Limitation of Actions - Topic 3046

Actions in tort - Fatal accidents - General -Brooks was killed in a motor vehicle acci­dent - His widow sued the driver of the other vehicle in her capacity as the administratrix of the estate - The state­ment of claim sought special damages "as a direct consequence" of the accident - The statement of claim was amended to include, inter alia, a claim for loss of earning capacity of the deceased and future loss of accumulated wealth - The defen­dant argued that the amendment raised a new cause of action that was barred by the Limitation of Actions Act - The Alberta Court of Queen's Bench held that the claim was not statute barred - The original statement of claim set out a claim for wrongful death and advanced a series of remedies arising out of that wrongful death - The amendments further particularized the remedies sought - See paragraphs 7 to 25.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - [See Limitation of Actions - Topic 3046 ].

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Employment of special or additional counsel - Brooks was killed in a collision with Stefura - His widow and two children (the plaintiffs) brought a Fatal Accidents Act dependency claim and a loss of earn­ings claim under the Survival of Actions Act on the basis of Duncan Estate v. Bad­deley et al. (Alta. C.A.) - The Alberta Court of Queen's Bench allowed the plain­tiffs' action - The court awarded the plain­tiffs costs on the basis of triple column 6 and awarded a second counsel fee - The trial took three weeks - This was the first case to assess damages under Duncan Estate v. Baddeley et al. - See paragraphs 293 to 297.

Practice - Topic 7110.4

Costs - Party and party costs - Special orders - Increase in scale of costs - Infla­tion - Brooks was killed in a collision with Stefura - His widow and two children (the plaintiffs) brought a Fatal Accidents Act dependency claim and a loss of earnings claim under the Survival of Actions Act - The Alberta Court of Queen's Bench allowed the plaintiffs' action - The plain­tiffs sought an inflation­ary increase in schedule C tariff items - The court refused to grant an increase, stating that "the Leg­islature of this Prov­ince evinced a clear intention that costs not be subject to infla­tionary increases which is of the same effect as awarding prejudg­ment interest on costs, which is prohibited by [s. 2(2)(d) of the Judgment Interest Act]." - See para­graphs 298 to 307.

Practice - Topic 7114

Costs - Party and party costs - Special orders - Increase in scale of costs - Novel or important issues - [See Practice - Topic 7063 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - Stefura was travelling westbound at 10:00 on a "pitch black" night without his headlights on, although his park lights were on - Brooks, who was travelling eastbound on a motorcycle, attempted to pass another vehicle - Brooks' motorcycle collided head on with Stefura's vehicle - Brooks was killed - Brooks' estate sued Stefura - Stefura claimed that Brooks was contributorily negligent because he had a blood alcohol level of 0.180 and was travelling 12 km/h over the speed limit - Eyewitnesses testified that Stefura's vehicle was not visible until the last second - The Alberta Court of Queen's Bench held that although Brooks breached his duty, such breach was not causally linked to the collision - A sober driver travelling at the speed limit would not have been able to avoid the collision - Stefura was solely liable - See paragraphs 58 to 159.

Torts - Topic 383

Negligence - Motor vehicle - Standard of care of driver - Driving at night - [See Torts - Topic 61 ].

Torts - Topic 405

Negligence - Motor vehicle - Rules of the road - Passing - General - [See Torts - Topic 61 ].

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - [See Torts - Topic 61 ].

Torts - Topic 476

Negligence - Motor vehicle - Equipment and lights - Headlights - [See Torts - Topic 61 ].

Torts - Topic 6610

Defences - Contributory negligence - Motor vehicle accidents - [See Torts - Topic 61 ].

Torts - Topic 6629

Defences - Contributory negligence - In­toxication - [See Torts - Topic 61 ].

Cases Noticed:

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161 (C.A.), leave to appeal dismissed (1997), 225 N.R. 397; 212 A.R. 397; 168 W.A.C. 397 (S.C.C.), consd. [para. 12].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 63 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 22].

Western Union Insurance Co. v. Nihill, [1972] 6 W.W.R. 241 (Alta. T.D.), refd to. [para. 31].

Western Union Insurance Co. v Nihill, [1973] 5 W.W.R. 242 (Alta. T.D.), refd to. [para. 31].

Evans v. Kent General Insurance Corp. (1991), 100 N.S.R.(2d) 411; 272 A.P.R. 411; 78 D.L.R.(4th) 428 (C.A.), leave to appeal dismissed (1991), 137 N.R. 382; 108 N.S.R.(2d) 90 (S.C.C.), refd to. [para. 35].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; [1987] 1 W.W.R. 577; 33 D.L.R.(4th) 174, refd to. [para. 41].

Hoekstra v. Economical Mutual Insurance Co. (1994), 1 M.V.R.(3d) 88 (Ont. Gen. Div.), refd to. [para. 43].

Willson v. Insurance Corp. of British Col­umbia, [1997] B.C.J. No. 698 (Prov. Ct.), refd to. [para. 46].

R. v. Erickson (1992), 125 A.R. 68; 14 W.A.C. 68; 72 C.C.C.(3d) 75 (C.A.), leave to appeal dismissed (1992), 154 N.R. 238; 141 A.R. 276; 46 W.A.C. 276 (S.C.C.), refd to. [para. 51].

Bruce v. McIntyre, [1955] S.C.R. 251, refd to. [para. 135].

Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), refd to. [para. 147].

Nova Mink Ltd. v. Transcanada Airlines, [1951] 2 D.L.R. 241 (N.S.S.C.), refd to. [para. 148].

Sefton v. Tophams Ltd., [1966] 1 All E.R. 1039 (H.L.), refd to. [para. 153].

Davies v. Powell Duffryn Associatied Collieries Ltd., [1942] A.C. 601 (H.L.), refd to. [para. 199].

Coco et al. v. Nicholls (1981), 31 A.R. 386 (C.A.), refd to. [para. 216].

Flett Estate v. Way-Mat Oilfield Services Ltd. et al. (1990), 103 A.R. 314; 72 Alta. L.R.(2d) 71 (C.A.), refd to. [para. 217].

Lalli v. Chawla (1997), 203 A.R. 27 (Q.B.), refd to. [para. 300].

Claudios' Restaurant Group Inc. and Lamonaco v. Calgary (City) (1994), 147 A.R. 355; 15 Alta. L.R.(3d) 141 (Q.B.), refd to. [para. 300].

Green Drop Ltd. v. Schwormstede (1994), 155 A.R. 302; 73 W.A.C. 302 (C.A.), refd to. [para. 300].

Dilcon Constructors Ltd. v. A.N.C. Devel­opments Inc. (1996), 189 A.R. 161 (Q.B.), refd to. [para. 301].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al. (1997), 211 A.R. 48 (Q.B.), refd to. [para. 302].

Statutes Noticed:

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 21(1)(a), sect. 21(1)(b), sect. 21(2) [para. 133]; sect. 87(b), sect. 111(1)(a), sect. 111(1)(c), sect. 111(1)(e)(ii) [para. 132].

Hospitals Act, R.S.A. 1980, c. H-11, sect. 40(1), sect. 40(2), sect. 40(3) [para. 29].

Judgment Interest Act, R.S.A. 1980, c. J-O.5, sect. 2(2)(d) [para. 305].

Rules of Court (Alta.), rule 104, rule 132 [para. 18].

Counsel:

Daniel A. Palamar and Robert J. Anderson (Oskar H. Kruger & Company), for the plaintiffs;

Wallace L. Benkendorf, Q.C. (Corbett & Company), for the defendant.

This action was heard by Belzil, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons on June 5 and July 3, 1998.