O'Connor v. Mahabir et al., (1999) 243 A.R. 11 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 14, 1999
• Jurisdiction: Alberta
• Citations: (1999), 243 A.R. 11 (QB)

O'Connor v. Mahabir (1999), 243 A.R. 11 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MY.049

Brent O'Connor and Donna O'Connor (plaintiffs) v. Glenn Dennis Mahabir, The City of Calgary, Spantec Limited, Underwood McLellan (1977) Ltd., DeLeuw Cather Canada Ltd., IBI Group and J.E. MacPherson (defendants)

(Action No. 9101-08805)

Indexed As: O'Connor v. Mahabir et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

April 14, 1999.

Summary:

The 17 year old plaintiff suffered a severe traumatic brain injury resulting in triplegia after being struck by a C-train. The plaintiff sued the operator of the C-train and the municipality for damages in negligence. The action against other de­fendants had been discontinued.

The Alberta Court of Queen's Bench dis­missed the plaintiff's action. The court provisionally assessed damages.

Damage Awards - Topic 120

Injury and death - Head injuries - Result­ing in paralysis - The 17 year old plaintiff suffered a severe traumatic brain injury resulting in triplegia after being struck by a C-train - The plaintiff had a pre-exist­ing hearing impairment - He had with­drawn from school prior to the accident - The plaintiff's recovery had plateaued - He was totally dependant on others - The plaintiff sued for damages in negligence - The Alberta Court of Queen's Bench dis­missed the plaintiff's action - However, the court provisionally assessed general non-pecuniary damages at $200,000 - See paragraph 180.

Damages - Topic 1412

Special damages - Loss of wages - De­ductions - Contingencies - The 17 year old plaintiff suffered a severe traumatic brain injury resulting in triplegia after being struck by a C-train - The plaintiff had a pre-existing hearing impairment - He had withdrawn from school prior to the accident - He had a low IQ - The plain­tiff's only pre-accident employment ex­perience was a busboy or dishwasher at various restaurants and cleaning at an auto-body shop - The accident left the plaintiff unemployable - The plaintiff sued for damages - The Alberta Court of Queen's Bench dismissed the plaintiff's action - However, the court stated that it would have applied a negative employment contingency rate of 30% and a 4.5% dis­ability contingency to any pre-trial and future loss of income award - See para­graphs 182, 183.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See Damages - Topic 1412 ].

Damages - Topic 1691

Deductions for payments or assistance by third parties - General - The Alberta Court of Queen's Bench discussed the deduction of benefits from third parties in determining damages - The court stated that there should be no deduction where the collateral source has the right of recoupment - Where there is no right of recoupment, past benefits ought to be deducted - With respect to future benefits, where there is no right of recoupment, the court should determine the likelihood that the benefits will persist into the relevant future - If the court is doubtful that the benefits will continue, there should be no deduction - If, however, the court is sat­isfied that the benefits will continue into the future, then their value should be deducted - See paragraphs 128 to 150.

Damages - Topic 1765

Deductions for payments or assistance by third parties - By statute or government - Social welfare payments - The plaintiff was rendered a triplegia after being struck by a C-train - He received benefits under the Assured Income for the Severely Handicapped Act (AISH) and his full-time care giver received home care payments from the Calgary Regional Health Author­ity - At issue was whether these payments were deductible from any damage award - The Alberta Court of Queen's Bench held that the AISH benefits should not be deducted where the director could seek re­imbursement - Further, AISH benefits that were exempted from recoupment should also not be deducted - The court held that the past home care payments should be deducted where there was no right of recoupment - However, future home care payments should not be deducted because they were subject to recoupment and were uncertain - See paragraphs 151 to 163.

Damages - Topic 1770.1

Deductions for payments or assistance by third parties - By statute or government - Home care - [See Damages - Topic 1765 ].

Highways - Topic 10

General and definitions - Definitions - Street, highway or road - Section 4(1)(c) of the Occupiers' Liability Act provided that the Act did not apply to highways controlled by a municipality - Highway was defined by the Highway Traffic Act - Section 6(3) of Calgary Bylaw 8M89 provided that nobody could cross a light rail train (LRT) track while control devices were activated - The Alberta Court of Queen's Bench stated that "while the con­trol devices are activated protecting a LRT crossing, that portion of the roadway in­cluding the adjacent sidewalks can no longer be considered a highway and the exemption under the Occupier's Liability Act is no longer available. Once the con­trol devises are deactivated following the passage of a C-train and the public is permitted to cross, the roadway and pedes­trian sidewalks would revert to the status of a highway." - See paragraphs 168 to 170.

Municipal Law - Topic 1710

Liability of municipalities - General and definitions - Statutory immunity - The Alberta Court of Queen's Bench agreed that a municipality was "not able to absolve itself from the common law of negligence by simply passing a bylaw absolving itself of any responsibility" - See paragraph 175.

Municipal Law - Topic 1727

Liability of municipalities - Highways and streets - Railway crossing - The 17 year old plaintiff and a friend approached a C-Train crossing - The plaintiff was hearing impaired, but was not wearing his hearing aids - The plaintiff was moderately to severely intoxicated - While the C-train was stopped, the operator saw a jacket thrown in the air about five to 10 feet from the track - The plaintiff stopped before the crossing - As the C-train began moving, the warning bells sounded and the vehicle crossing gates closed - As the train approached at approximately 40 km/h, the operator again saw the jacket in the air - The plaintiff jumped in front of the C-train to catch the jacket - The operator braked - The C-train struck the plaintiff - The Alberta Court of Queen's Bench dismissed the plaintiff's negligence action - The plaintiff was solely at fault - He was negligent by not wearing his hear­ing aids, walking into a dangerous situ­ation while impaired and jumping onto the track to catch the jacket - See paragraphs 164 to 165.

Municipal Law - Topic 1727

Liability of municipalities - Highways and streets - Railway crossing - The 17 year old plaintiff was struck by a C-Train at a pedestrian crossing adjacent to a roadway -The plaintiff was hearing impaired, but was not wearing his hearing aids and was intoxicated - The plaintiff sued the oper­ator and the municipality - The plaintiff claimed that he was a child trespasser and the municipality had a duty as the occupier to take such care as in all the circum­stances was reasonable to see that he would be reasonably safe from danger (Occupiers' Liability Act, s. 13(1)) - At the time of the accident, the warning gates were down on the adjacent roadway, the lights were flashing and the warning bells were sounding - The Alberta Court of Queen's Bench held that the municipality met the duty under the Act - See para­graphs 167 to 173.

Municipal Law - Topic 1727

Liability of municipalities - Highways and streets - Railway crossing - [See High­ways - Topic 10 ].

Municipal Law - Topic 1818

Liability of municipalities - Negligence - Defences - Statutory immunity or exemp­tion - [See Municipal Law - Topic 1710 ].

Railways - Topic 5203

Operation - Highway crossings - Duty of care - General - [See first and second Municipal Law - Topic 1727 ].

Torts - Topic 3553

Occupiers' liability or negligence for dan­gerous premises - Occupier and premises defined - Respecting streets and highways -[See Highways - Topic 10 ].

Torts - Topic 3588.1

Occupiers' liability or negligence for dan­gerous premises - Negligence of occupier - Railway tracks and crossings - [See second Municipal Law - Topic 1727 ].

Torts - Topic 3851

Occupiers' liability or negligence for dan­gerous premises - Trespassers - Duty of occupier to trespassers - [See second Municipal Law - Topic 1727 ].

Torts - Topic 6602

Defences - Contributory negligence - General - Application of contributory negligence statutes - The 17 year old plaintiff approached a C-Train crossing - The plaintiff was hearing impaired, but was not wearing his hearing aids - The plaintiff was moderately to severely intox­icated - While the C-train was stopped, the operator saw a jacket thrown in the air about five to 10 feet from the track - As the C-train began moving, the warning bells sounded and the crossing gates closed - As the train approached at approximately 40 km/h, the operator again saw the jacket in the air - The plaintiff jumped in front of the C-train to catch the jacket - The operator applied the emergency brake - The C-train struck the plaintiff - The plaintiff sued the operator and the munici­pality - The plaintiff argued that the Con­tributory Negligence Act did not apply because the operator's actions were com­pletely severable from his - The Alberta Court of Queen's Bench held that the defendants were not negligent - Regard­less, the court would have rejected the plaintiff's contributory negligence argument - See paragraph 178.

Words and Phrases

Highway - The Alberta Court of Queen's Bench discussed the meaning of "highway" in "highways controlled by a municipality" as used in s. 4(1)(c) of the Occupier's Liability Act, R.S.A. 1980, c. 0-3 - See paragraphs 168 to 170.

Cases Noticed:

Houle et al. v. Calgary (City) and Canada Safeway Ltd. (1985), 60 A.R. 366 (C.A.), affing. (1983), 44 A.R. 271 (Q.B.), refd to. [para. 85].

Mackow v. Sood (1993), 141 A.R. 233; 46 W.A.C. 233 (C.A.), refd to. [para. 91].

Munton v. Edmonton (City), [1936] 2 W.W.R. 481 (Alta. T.D.), refd to. [para. 95].

O'Hearn v. Port Arthur (Town) (1902), 4 O.L.R. 209 (C.A.), refd to. [para. 96].

Kozack v. Richter and Dobson and Cana­dian National Railway Co., [1971] 1 W.W.R. 508 (Sask. C.A.), refd to. [para. 98].

Weston v. Saskatoon (City), [1941] 3 W.W.R. 293 (Sask. K.B.), refd to. [para. 99].

Parsons v. British Columbia Electrical Railway Co., [1940] 3 W.W.R. 612 (B.C.S.C.), refd to. [para. 101].

Bruno v. Arksey Estate (1995), 18 M.V.R.(3d) 50 (B.C.S.C.), refd to. [para. 102].

Warren v. Camrose (City), [1989] 3 W.W.R. 172; 92 A.R. 388 (C.A.), refd to. [para. 103].

Bain v. Board of Education of Calgary et al. (1993), 146 A.R. 321; 14 Alta. L.R.(3d) 319 (Q.B.), refd to. [para. 107].

Dubé v. Penlon Ltd. (1994), 21 C.C.L.T.(2d) 268 (Ont. Gen. Div.), refd to. [para. 112].

Wenden v. Trikha et al. (1991), 116 A.R. 81; 8 C.C.L.T.(2d) 138 (Q.B.), refd to. [para. 124].

Schrump v. Koot (1977), 4 C.C.L.T. 74 (Ont. C.A.), refd to. [para. 124].

Fuerst v. St. Adolphe Co-op Parc Inc. et al. (1989), 56 Man.R.(2d) 184 (Q.B.), refd to. [para. 129].

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, refd to. [para. 131].

Hodgson v. Trapp, [1988] 3 All E.R. 870; 102 N.R. 287 (H.L.), refd to. [para. 132].

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; [1994] 4 W.W.R. 153; 113 D.L.R.(4th) 1; 88 B.C.L.R.(2d) 273; 20 C.C.L.T.(2d) 1, refd to. [para. 132].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Skeffington v. McDonough and Vanam­burg (1992), 112 N.S.R.(2d) 52; 307 A.P.R. 52 (T.D.), refd to. [para. 134].

Boarelli v. Flannigan (1973), 36 D.L.R.(3d) 4 (Ont. C.A.), refd to. [para. 134].

Hurd v. Hodgson (1988), 89 A.R. 241; 61 Alta. L.R.(2d) 36 (Q.B.), refd to. [para. 135].

Henderson v. Vaillancourt, [1979] 1 W.W.R. 345; 13 A.R. 345; 94 D.L.R.(3d) 670 (C.A.), refd to. [para. 137].

McLeod v. Palardy (1980), 4 Man.R.(2d) 218 (Q.B.), refd to. [para. 137].

Kuzyk v. Commercial Union Assurance Co. of Canada (1991), 117 A.R. 391; 2 W.A.C. 391; 83 Alta. L.R.(2d) 221 (C.A.), refd to. [para. 158].

Bigl v. Alberta (1989), 98 A.R. 203; 67 Alta. L.R.(2d) 349 (C.A.), refd to. [para. 158].

R. v. Luyben (1991), 126 A.R. 58 (Prov. Ct.), refd to. [para. 170].

Varkonyi v. Canadian Pacific Railway Co., Dixon, Poelzer, Hudson and Michaud (1980), 26 A.R. 422 (Q.B.), refd to. [para. 175].

Paskivski et al. v. Canadian Pacific Ltd. et al., [1975] 5 W.W.R. 640; 5 N.R. 1 (S.C.C.), refd to. [para. 175].

Weiss v. Larson, Canadian National Rail­way Co. and Gourley (1965), 52 W.W.R.(N.S.) 577 (Alta. T.D.), refd to. [para. 175].

Knudslien v. Larson - see Weiss v. Larson, Canadian National Railway Co. and Gourley.

Statutes Noticed:

Calgary (City) Bylaws, Bylaw No. 8M89, sect. 6(3) [para. 169].

Contributory Negligence Act, R.S.A. 1980, c. C-23, sect. 7 [para. 177].

Co-ordinated Home Care Program Regu­lation - see Public Health Act Regula­tions (Alta.).

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 1(g)(I)(A) [para. 168].

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 184(6)(a) [para. 174].

Occupier's Liability Act, R.S.A. 1980, c. 0-3, sect. 4(1)(c) [para. 168]; sect. 13(1) [para. 167].

Public Health Act Regulations (Alta.), Co-ordinated Home Care Program Regula­tion, Reg. 239/85, sect. 3(1), sect. 3(4) [para. 157].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (1st Ed. 1981), pp. 568 [para. 121]; 592, 593 [para. 120].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 568 [para. 128]; 582, 583 [para. 145].

Counsel:

John A. Sutherland, for the plaintiffs;

Mark S. Young and Monette N. Maillet, for the defendants, Mahabir and the City of Calgary.

This action was heard by Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on April 14, 1999.