Campbell Estate v. Calgary Power Ltd. et al., (1986) 70 A.R. 161 (QB)

• Judge: O'Leary, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 28, 1986
• Citations: (1986), 70 A.R. 161 (QB)

Campbell Estate v. Calgary Power (1986), 70 A.R. 161 (QB)

MLB headnote and full text

Jean Marion Campbell (Trustee of the Estate of James Patrick Campbell, a mentally incapacitated person) v. Calgary Power Ltd., Highwood Air Service Ltd., Skocdopole Brothers Aviation Ltd., Blackwood and Blackwood's Estate

(Action No. 135905)

Indexed As: Campbell Estate v. Calgary Power Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

O'Leary, J.

May 28, 1986.

Summary:

A 56 year old experienced pilot, while landing at a private airstrip, struck "lightning shield wires" suspended between two transmission towers that were perpendicular to and approximately 400 feet west of the runway. The pilot was severely injured and was now mentally incapacitated. The pilot's trustee brought a negligence action for damages against Calgary Power, the operator of the airstrip and his company, and the operator's father, who owned the land.

The Alberta Court of Queen's Bench found the operator and his company negligent and 50% at fault for failing to ensure that the wires were marked to warn pilots. The court found the pilot contributorily negligent and 50% at fault for failing to follow standard procedure by flying over the transmission towers to avoid unseen wires. The court held that Calgary Power was not negligent in failing to mark the wires, because on the basis of knowledge that they possessed markings were not required under Transport Canada guidelines.

Damage Awards - Topic 102

Head injuries - Brain damage - Resulting in mental incompetence - 56 year old man suffered a closed head injury resulting in brain damage - Man now permanently mentally incompetent - Totally dependent upon others - Incontinent, must be fed - Must be institutionalized - Responds to simple questions but unable to communicate orally - Life expectancy unchanged, but no likelihood of significant improvement - Limited awareness of his condition - Partially paralyzed - The Alberta Court of Queen's Bench assessed $100,000.00 general damages for non-pecuniary loss - See paragraphs 80 to 89.

Damage Awards - Topic 585

Torts - Torts affecting third parties - Loss of consortium - Domestic Relations Act, R.S.A. 1980, c. D-37, s. 43 - 56 year old husband suffered brain damage leaving him mentally incompetent and totally dependent upon others - Husband incontinent, unable to feed himself, must be institutionalized - Husband responds to simple questions but unable to communicate orally - No likelihood of significant improvement - 49 year old wife almost totally deprived of husband's society and comfort on a permanent basis - The Alberta Court of Queen's Bench assessed $15,000.00 general damages for loss of consortium - See paragraphs 90 to 95.

Damages - Topic 1440

Special damages - Medical and hospital costs - A man was severely injured in December 1976 - He was institutionalized up until the date of judgment in May 1986 - The Alberta Court of Queen's Bench assessed special damages for care and treatment as follows: $292,841.00 for subrogated medicare claims, plus $22,555.50 nursing home charges, plus $1,800.00 television rental cost, less $18,300.00 for the cost of food the man did not have to purchase over the 10 years as a result of his institutionalization, for a total of $298,896.50 - The court allowed the $22,555.50 claim for nursing home charges even though the charges were paid by the Department of Veterans Affairs, because it was a collateral benefit - See paragraphs 105 to 109.

Damages - Topic 1548

General damages - Personal injury - Management fee - A man suffered brain damage in an airplane crash, causing mental incompetency - Damages for future care were assessed at $298,896.50 - The man's wife was named trustee of his estate, with the responsibility of managing the judgment monies - The Alberta Court of Queen's Bench assessed $10,000.00 general damages as a management fee - See paragraphs 110 to 130.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of income - A 56 year old pilot suffered severe brain damage leaving him unable to work for the nine years and one month until his retirement - The pilot's estimated annual salary was $20,000.00 - The Alberta Court of Queen's Bench assessed $145,600.00 general damages for loss of future income (i.e. $182,000.00 less a contingency factor of 20%) - See paragraphs 97 to 104.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - A 56 year old man suffered permanent brain damage - The Alberta Court of Queen's Bench calculated general damages for future care and treatment as $15,000.00 per year for the man's life expectancy (discounted at 3%), plus $25,000.00 for home renovations to accommodate the man, plus a $10,000.00 management fee to his wife as trustee of his estate, for a total of $207,290.00 - See paragraphs 110 to 130.

Torts - Topic 724

Negligence - Airplanes - Standard of care - Pilot - Transmission towers perpendicular to a private airstrip stood 92 and 97 feet high respectively - A pilot flew between the two towers and struck two unseen lightning shield wires at a height of 68 feet - The standard practice of pilots was to fly at a height greater than the towers to avoid unseen wires - The Alberta Court of Queen's Bench held that the pilot was negligent and 50% at fault for the injuries he suffered in the subsequent crash - See paragraphs 46 to 53.

Torts - Topic 4532

Dangerous activities - Electricity - Power transmission lines - A pilot struck two unmarked lightning shield wires suspended between two transmission towers perpendicular to the runway of a private airstrip - The operator of the airstrip knew of the danger and the need to mark the wires, but failed to do anything about it because of the cost - The operator did not warn the pilot of the danger, even though the pilot was unfamiliar with the airstrip - The Alberta Court of Queen's Bench held that the operator and his company were negligent and 50% at fault for failing to ensure that the lines were marked, particularly after the runway was extended one year before the accident - See paragraphs 37 to 41.

Torts - Topic 4532

Dangerous activities - Electricity - Power transmission lines - Two transmission towers were perpendicular to and approximately 400 feet west of a private airstrip with a 1,300 foot runway - A pilot struck unmarked wires at a height of 68 feet - Transport Canada guidelines permitted unmarked obstructions up to 80-85 feet (for a 1,300 foot runway) - The runway was extended to 2,600 feet one year before the accident, but Calgary Power did not know nor should it have known of the extension - A 2,600 foot runway would require the wires to be marked under the guidelines - The Alberta Court of Queen's Bench held that Calgary Power was not negligent in failing to mark the wires, because it justifiably relied on the fact that the runway was only 1,300 feet, which would not require the wires to be marked - See paragraphs 27 to 36.

Torts - Topic 6608

Defences - Contributory negligence - Causal connection - Requirement of - A pilot struck power lines and was severely injured - The pilot was not wearing his glasses and the defendant submitted that he was contributorily negligent - The Alberta Court of Queen's Bench held that the pilot was not negligent in failing to wear his glasses, but even if he were, it was doubtful that he could have seen the wires in time to avoid them - The court therefore held that the failure to wear the glasses did not contribute to or cause the accident - See paragraphs 54 to 58.

Torts - Topic 6630

Defences - Contributory negligence - Failure to use safety equipment - Aircraft pilot - An airplane crashed after striking power lines - The pilot was wearing his lap belt, but not his shoulder harness - The Alberta Court of Queen's Bench held that the pilot breached his duty of care to protect himself by not wearing the harness - However, the court held that the pilot's breach did not affect liability where the court was not persuaded that the harness would have prevented or lessened the severity of the pilot's injuries - See paragraphs 59 to 78.

Cases Noticed:

M'Alister (Donoghue) v. Stevenson, [1932] A.C. 562, refd to. [para. 27].

York v. British Columbia Hydro and Power Authority (1967), 61 W.W.R.(N.S.) 385, refd to. [para. 29].

Froom v. Butcher, [1975] 3 All E.R. 520 (C.A.), disagreed with [para. 66].

Gagnon v. Beaulieu et al., [1977] 1 W.W.R. 702 (B.C.S.C.), disagreed with [para. 66].

Dworkin v. Bernier (1983), 51 A.R. 231 (Alta. Q.B.), agreed with [para. 67].

Genik v. Ewanylo, [1980] 6 W.W.R. 158; 3 Man.R.(2d) 317, agreed with [para. 67].

Lee v. Leeming (1985), 61 A.R. 18; 36 Alta. L.R.(2d) 412, consd. [para. 88].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; [1981] 1 W.W.R. 289; 114 D.L.R.(3d) 385; 7 Alta. L.R.(2d) 1; 33 N.R. 232; 24 A.R. 620, appld. [para. 91].

Ramsay v. Ducharme (1984), 56 A.R. 275, consd. [para. 93].

Ulveland et al. v. Martin et al. (1977), 4 C.C.L.T. 102 (B.C.S.C.), disagreed with [para. 66].

Statutes Noticed:

Dependent Adults Act, R.S.A. 1980, c. D-32.

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 43(1), sect. 43(2) [para. 90].

Electric Protection Act, R.S.A. 1970, c. 120.

Electric Protection Act Regulations, Reg. 428-57, sect. 211 [para. 28].

Authors and Works Noticed:

Transport Canada, Minimum Requirements for Airports, s. 2.01 [para. 23].

Counsel:

C.S. Brooker and A.G.P. Shewchuk, for the plaintiff;

J.G. Martland, Q.C. and Linda A. Taylor, for the defendant, Calgary Power Ltd.;

No one representing the Estate of Alexander Henry St. Claire Blackwood, Rodger A. Blackwood, or Highwood Air Service Ltd.

This action was heard before O'Leary, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 28, 1986.