Dabrowski v. Robertson, (2007) 419 A.R. 359 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 27, 2007
• Citations: (2007), 419 A.R. 359 (QB);2007 ABQB 522

Dabrowski v. Robertson (2007), 419 A.R. 359 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. SE.013

Marek Dabrowski and Bozena Dabrowski (plaintiffs) v. Rhonda Robertson (defendant) and Manitoba Public Insurance Corporation (third party)

(0403 02958; 2007 ABQB 522)

Indexed As: Dabrowski v. Robertson

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

August 27, 2007.

Summary:

Dabrowski was injured when the loaded semi-trailer truck that he was driving jack-knifed into the ditch. Dabrowski claimed that Robertson had parked her car on the travel portion of the highway lane in which he was driving and that he had no option but to drive into the ditch in order to avoid a collision with her. Dabrowski sued Robertson for damages. Dabrowski's wife claimed damages for loss of consortium.

The Alberta Court of Queen's Bench held that Dabrowski failed to establish that Robertson was liable for the accident. Despite that finding, the court went on to assess what damages it would have awarded if Robertson had been found liable.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - Dabrowski sued Robertson for damages for injuries he suffered when the semi-trailer truck he was driving jack-knifed into the ditch - Dabrowski's most serious injuries were a fracture of his left ankle and a fracture dislocation of his left subtalar joint, which left him with a 9% permanent partial disability - He also suffered a scalp laceration and contusion to his head which required stitches, four rib fractures, and ongoing tinnitus - He had also been diagnosed with post traumatic stress disorder and anxiety disorder related to the accident, which he claimed adversely affected his driving and his employment as a truck driver - The Alberta Court of Queen's Bench held that Robertson was not liable for the accident, but it went on to assess Dabrowski's damages - The court held that it would have awarded Dabrowski total nonpecuniary damages of $100,000 for pain and suffering - See paragraphs 103 to 135.

Damage Awards - Topic 128

Injury and death - Leg injuries - Foot - [See Damage Awards - Topic 125 ].

Damage Awards - Topic 142

Injury and death - Leg injuries - Fracture - [See Damage Awards - Topic 125 ].

Damage Awards - Topic 215

Injury and death - Psychological injuries - Post traumatic stress disorder - [See Damage Awards - Topic 125 ].

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - Dabrowski sued Robertson for damages for injuries he suffered when the semi-trailer truck he was driving jack-knifed into the ditch - In addition to numerous physical injuries, Dabrowski had also been diagnosed with post traumatic stress disorder and anxiety disorder related to the accident - Dabrowski's wife claimed damages for loss of consortium - The Alberta Court of Queen's Bench held that Robertson was not liable for the accident, but it went on to assess damages - In light of the conflicting evidence from Dabrowski's wife about the reasons for her lack of libidinal interest, the court stated that it would have allowed only $10,000 for loss of consortium - See paragraphs 10 and 168 to 171.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - Dabrowski sued Robertson for damages for injuries he suffered when the semi-trailer truck he was driving jack-knifed into the ditch - In addition to numerous physical injuries, Dabrowski had also been diagnosed with post traumatic stress disorder and anxiety disorder related to the accident, which he claimed adversely affected his driving and his employment as a truck driver - The Alberta Court of Queen's Bench held that Robertson was not liable for the accident, but it went on to assess Dabrowski's damages - With respect to past loss of income, the court held that although Dabrowski was clearly able to return to work as a truck driver a little more than two years after the accident, it concluded that if he had followed his health care providers' instructions, he would have been able to return to full time employment in his pre-accident area of employment one and one-half years after the accident - That failure to mitigate had to be taken into account in assessing Dabrowski's past loss of income claim - See paragraphs 136 to 144.

Damages - Topic 1448

Special damages - Interpreter services - Dabrowski sued Robertson for damages for injuries he suffered in a motor vehicle accident - The Alberta Court of Queen's Bench found that Robertson was not liable for the accident, but it went on to assess Dabrowski's damages - With respect to pecuniary damages for interpreter services, the court stated that "A litigant whose first language is not English, and whose expressive English - as opposed to his good receptive English - is only reasonably good is entitled to have an interpreter available for all medical consultations; here, a Polish/English interpreter was a reasonable expense for Dabrowski" - See paragraphs 11 and 145 to 147.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - Dabrowski sued Robertson for damages for injuries he suffered when the semi-trailer truck he was driving jack-knifed into the ditch - Dabrowski's most serious physical injuries were a fracture of his left ankle and a fracture dislocation of his left subtalar joint, which left him with a 9% permanent partial disability - He had also been diagnosed with post traumatic stress disorder and anxiety disorder related to the accident, which he claimed adversely affected his driving and his employment as a truck driver - The Alberta Court of Queen's Bench held that Robertson was not liable for the accident, but it went on to assess Dabrowski's damages - In dealing with future loss of income, the court concluded that, as of the date of trial, Dabrowski had essentially recovered from the accident and he held a truck driving job making more money than he made at the time of the accident - However, the court stated that it would have accepted Dabrowski's economist's reliance on a HALS/PALS analysis to predict that Dabrowski would likely have suffered some reduction of future income because of his disability, although that loss would be based on a minor or moderate level of disability rather than the severe level of disability used by Dabrowski's economist - In the result, the court estimated Dabrowski's future loss of income at $50,000 - See paragraphs 8 and 155 to 164.

Evidence - Topic 1191

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - Particular instances - Accidents - Dabrowski was driving a semi-trailer truck which jack-knifed into the ditch - Dabrowski sued Robertson for damages, claiming that she parked her car on the travel portion of the highway lane in which he was driving and that he had no option but to drive into the ditch in order to avoid a collision - At trial, Robertson had no reliable, independent, memory of the events surrounding the accident - She relied on the statement she gave to the police at the accident scene - The Alberta Court of Queen's Bench concluded that Robertson's statement to the police at the accident scene was reliable - The court characterized Robertson's statement to the police at the accident scene as analogous to a res gestae statement, i.e. one which carried a guarantee of authenticity because it was made in circumstances where the maker had no time, and no interest, in dissembling - The statement was made very shortly after the event when Robertson was described as visibly upset and shaken - See paragraphs 5 and 62 to 63.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - Dabrowski sued Robertson for damages for injuries he suffered in a motor vehicle accident - The Alberta Court of Queen's Bench drew an adverse inference against Dabrowski in the circumstances where his family physician did not testify - That physician was a material witness about Dabrowski's post-accident complaints and compliance with treatment, and about the certificate she signed stating that Dabrowski was fit to return to work - The court held that the adverse inference went beyond the usual conclusion in such a situation, i.e. that the missing witness would not be helpful to the litigant, and had to be the much more unusual finding that the family physician's evidence would be harmful to Dabrowski's case - See paragraphs 4 and 65 to 66.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - Dabrowski sued Robertson for damages for injuries he suffered in a motor vehicle accident - The neuropsychologist retained by Robertson to do a defence medical examination of Dabrowski, Dr. Derwent, did not testify at trial - However, Robertson called, as her own witness, Dr. Mrazik, who had originally filed a report on behalf of Dabrowski - The Alberta Court of Queen's Bench stated that in these circumstances, no adverse inference should be made concerning the absence of Dr. Derwent as a trial witness - The court stated that "an adverse inference should not be drawn against the defendant when the defendant's medical-legal neuropsychologist does not testify in circumstances such as these where the neuropsychologist originally presented as an expert witness for the plaintiff testifies as a defence witness at trial" - See paragraphs 4 and 67 to 68.

Torts - Topic 475

Negligence - Motor vehicle - Equipment and lights - Lights - General - [See Torts - Topic 527 ].

Torts - Topic 500

Negligence - Motor vehicle - Parking or stopping - On highway - [See Torts - Topic 527 ].

Torts - Topic 505

Negligence - Motor vehicle - Parking or stopping - Parked or stopped vehicle (incl. marking or warning of) - [See Torts - Topic 527 ].

Torts - Topic 527

Negligence - Motor vehicle - Signals and warnings - Stopping on highway - Dabrowski was driving a loaded semi-trailer truck which jack-knifed into the ditch - Dabrowski claimed that Robertson parked her car on the travel portion of the highway lane in which he was driving and that he had no option but to drive into the ditch in order to avoid a collision with her - Dabrowski sued Robertson for damages - The Alberta Court of Queen's Bench held that Dabrowski had not proved that Robertson was negligent when she stopped her vehicle to fix her windshield wipers which had crossed and stuck on her windshield - On the contrary, the evidence established that Robertson had pulled onto the shoulder in a location where her car was easily visible and where there were no adverse roadway conditions, that she was completely off the travel portion of the highway, and that she had not exited her vehicle when Dabrowski took action which resulted in the jack-knifing of his vehicle - The court also held that Robertson's failure to activate the hazard lights on her vehicle did not contribute to the accident - Robertson was not blocking, or even very close to, the travel portion of the highway, her vehicle was relatively small and fit well within the shoulder, and long distance sight lines, visibility, and road conditions were good - In those circumstances, it was not negligent for the driver of a stopped vehicle to fail to activate the hazard lights - See paragraphs 5 and 69 to 102.

Cases Noticed:

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Ayers v. Singh, [1995] B.C.T.C. Uned. 627 (S.C.), refd to. [para. 13].

Sieben v. Kohlman (1988), 65 Sask.R. 166 (Q.B.), refd to. [para. 13].

Gossen et al. v. Fowler et al. (2000), 275 A.R. 64; 2000 ABQB 994, refd to. [para. 13].

Rushton et al. v. Hofer et al. (1998), 235 A.R. 321; 1998 ABQB 1010, refd to. [para. 13].

Canadian Pacific Ltd. et al. v. Gill et al., [1973] S.C.R. 654, refd to. [para. 13].

Cassan v. Murray, [1952] 2 D.L.R. 313 (Man. C.A.), refd to. [para. 13].

Tong v. Bedwell (2002), 311 A.R. 174; 2002 ABQB 213, refd to. [para. 13].

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Nagy v. Canada et al. (2005), 373 A.R. 338 (Q.B.), refd to. [para. 14].

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Silvaniuk v. Stevens (1999), 244 A.R. 75; 209 W.A.C. 75; 1999 ABCA 191, refd to. [para. 15].

Wychopen et al. v. Fuller (1998), 230 A.R. 171, 1998 ABQB 591, refd to. [para. 16].

Smith v. McNabb (1993), 146 A.R. 309 (Q.B.), refd to. [para. 16].

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Pallos v. Insurance Corp. of British Columbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310 (C.A.), refd to. [para. 16].

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Ganderton v. Brown et al., [2004] A.R. Uned. 356 (Q.B.), refd to. [para. 16].

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Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 22].

Pavicic v. Pelchat (2003), 332 A.R. 213; 2003 ABQB 19, refd to. [para. 23].

Weston et al. v. Regan et al., [2006] A.R. Uned. 500; 2006 ABQB 624, refd to. [para. 23].

Delahay v. Holder et al., [2005] A.R. Uned. 349; 2005 ABQB 283, refd to. [para. 23].

Laurent et al. v. Théoret; Laurent et al. v. Hôpital Notre-Dame de l'Espérance, [1978] 1 S.C.R. 605; 17 N.R. 593, refd to. [para. 23].

Clelland v. Berryman, [1974] B.C.J. No. 733 (S.C.), refd to. [para. 24].

Counsel:

Dan P. Cavanagh and Darcy McAllister (Student-at-Law) (Weir Bowen), for the Dabrowskis;

Trevor MacDonald (Burnett Duckworth Palmer), for Ms. Robertson;

Ward Hanson and Emily Thompson (Student-at-Law) (Fraser Milner Casgrain), for the Manitoba Public Insurance Corp.

This action was heard on June 4 to 15, 2007, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on August 27, 2007.