Dubitski v. Barbieri, 2004 ABQB 187

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 10, 2004
• Citations: 2004 ABQB 187;(2004), 355 A.R. 81 (QB)

Dubitski v. Barbieri (2004), 355 A.R. 81 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MR.125

Benjamin E. Dubitski (plaintiff) v. Kathleen Lynn Barbieri and Paul Barbieri (defendants)

(0003 00656; 2004 ABQB 187)

Indexed As: Dubitski v. Barbieri

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

March 10, 2004.

Summary:

The plaintiff was injured in a motor vehicle accident. He sued the driver and the owner of the other vehicle.

The Alberta Court of Queen's Bench allowed the plaintiff's action and assessed damages.

Damage Awards - Topic 26

Injury and death - Arm and hand injuries -Fracture of radius or ulna - The plaintiff (aged 22 at the time) was injured in a motor vehicle accident on July 25, 1998 - He suffered compound fractures to his left radius and ulna, fractures to both wrists, wounds to his left arm requiring a skin graft and minor cuts and bruises - The wounds on his arm and the fractures to his left forearm and right wrist healed by September 1998 - The left wrist took a couple more months - The plaintiff underwent various surgeries - The plaintiff developed carpal tunnel syndrome in his right wrist and osteoarthritis in both wrists - The plaintiff was in constant pain, but the severity of the pain differed from time to time - The Alberta Court of Queen's Bench found that the plaintiff had a permanent partial disability of 14% that would increase over time to 20% - The court awarded the plaintiff $95,000 general damages - See paragraphs 91 to 96.

Damage Awards - Topic 29

Injury and death - Arm and hand injuries -Wrist - [See Damage Awards - Topic 26 ].

Damage Awards - Topic 42

Injury and death - Arm and hand injuries -Carpal tunnel syndrome - [See Damage Awards - Topic 26 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The plaintiff (aged 22 at the time) was injured in a motor vehicle accident - He suffered, inter alia, compound fractures to his left forearm and fractures to both wrists - The Alberta Court of Queen's Bench awarded the plaintiff $32,500 for loss of housekeeping capacity - See paragraphs 128 to 130.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, "agony of the moment" or "agony of collision" - The defendant attempted to make a left turn at an intersection - The plaintiff was driving a motorcycle in one of the oncoming lanes - Although the speed limit was 60 kph, the plaintiff was travelling at 65 to 70 kph - The plaintiff braked using only the rear brake - The motorcycle struck the defendant's vehicle - The Alberta Court of Queen's Bench held that the defendant was solely liable for the accident - The plaintiff had the right of way - The defendant placed the plaintiff in an emergency situation - Approximately 3.5 seconds elapsed between the time the plaintiff was aware of the potential danger and the accident - The plaintiff's speed was not a factor - Although the plaintiff should have used the front brake as well as the back brake, it was not reasonable to find him at fault for not utilizing better braking technique giving that the agony of the moment lasted about 3.5 seconds or an "instant" - See paragraphs 1 to 71.

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - The defendant attempted to make a left turn at an intersection - The plaintiff was driving a motorcycle in an oncoming lane - The motorcycle struck the defendant's vehicle - The defendant argued that the plaintiff was contributorily negligent because if the plaintiff had used effective hazard detection techniques, he would have slowed his motorcycle as he approached an intersection where it appeared that vehicles might pose a hazard - The Alberta Court of Queen's Bench stated that "While the consequences with respect to injury may in the case of an accident be different for the driver of a motorcycle than the operator of an 18 wheeler tractor trailer unit, their obligations in my view are the same. Given normal road conditions, there is no obligation on a driver who has the right of way on a green light to pay any particular attention to the driver of a vehicle that is stopped in an oncoming left turning lane, as the driver with the right of way is entitled to assume the other driver will obey the rules of the road." - See paragraphs 63 and 64.

Torts - Topic 394

Negligence - Motor vehicle - Standard of care of driver - On braking - [See Torts - Topic 379 ].

Torts - Topic 395

Negligence - Motor vehicle - Standard of care of driver - Duty to pay attention - [See Torts - Topic 393 ].

Torts - Topic 439

Negligence - Motor vehicle - Rules of the road - Intersections - Turning left - Right of way - [See Torts - Topic 379 and Torts - Topic 393 ].

Torts - Topic 6628

Defences - Contributory negligence - Particular cases - Failure to take preventive or remedial action - [See Torts - Topic 393 ].

Cases Noticed:

Au et al. v. Carnegie et al. (2003), 345 A.R. 50; 2003 ABQB 893, refd to. [para. 38].

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 38].

McElhatton v. Wales (2000), 255 A.R. 183; 220 W.A.C. 183; 2000 ABCA 94, refd to. [para. 38].

Vibert v. Stern et al. (1997), 225 A.R. 1 (Q.B.), refd to. [para. 38].

Nanji v. Mercs (1993), 135 A.R. 197; 33 W.A.C. 197 (C.A.), leave to appeal denied [1994] 1 S.C.R. ix, refd to. [para. 38].

Ly v. Gilbert, 2001 CarswellAlta 1524 (Q.B.), refd to. [para. 38].

Carich v. Cook (1992), 9 B.C.A.C. 112; 19 W.A.C. 112; 90 D.L.R.(4th) 322 (C.A.), refd to. [para. 39].

Bond v. Mingo (1990), 108 A.R. 164 (Q.B.), refd to. [para. 39].

Wittmeier v. Scholes (1998), 221 A.R. 165 (Q.B.), refd to. [para. 39].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84 (C.A.), refd to. [para. 39].

Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43 (C.A.), refd to. [para. 41].

Crackel v. Miller et al. (2003), 342 A.R. 109; 2003 ABQB 781, refd to. [para. 93].

Wittmeier v. Scholes (1999), 239 A.R. 42; 1999 ABQB 4, refd to. [para. 93].

Laframboise v. Billett et al. (1994), 160 A.R. 25 (Q.B.), refd to. [para. 93].

Pendergras and Presley v. McGrath and Tilden Rent A Car Co. (1988), 86 A.R. 291 (C.A.), leave to appeal denied (1988), 97 N.R. 396; 92 A.R. 320, refd to. [para. 93].

Dushynski v. Rumsey (2001), 295 A.R. 309; 2001 ABQB 513, varied (2003), 327 A.R. 373; 296 W.A.C. 373; 16 Alta. L.R.(4th) 237; 2003 ABCA 164, refd to. [para. 93].

Vespa v. Dynes et al. (2002), 314 A.R. 1; 2002 ABQB 25, refd to. [para. 93].

Wade v. Baxter (2001), 302 A.R. 1; 2001 ABQB 812, refd to. [para. 93].

Chae v. Min et al. (2001), 305 A.R. 220; 2001 ABQB 1107, refd to. [para. 93].

Unrau v. Rice, [1993] B.C.J. No. 2498 (S.C.), refd to. [para. 94].

Vrdoljak v. Hamilton Street Railway Co. (1994), 21 O.R.(3d) 613 (Gen. Div.), refd to. [para. 94].

Bruneau v. Caseley (1998), 230 A.R. 251; 1998 ABQB 836, refd to. [para. 94].

Moore v. Smith and Davies (1992), 130 A.R. 8 (Q.B.), refd to. [para. 94].

Smith v. McNabb (1993), 146 A.R. 309 (Q.B.), refd to. [para. 94].

Poustie v. Snell (1996), 82 B.C.A.C. 280; 133 W.A.C. 280 (C.A.), affing. [1994] B.C.J. No. 806 (S.C.), refd to. [para. 107].

DeMerchant v. Price (2001), 241 N.B.R.(2d) 49; 625 A.P.R. 49 (T.D.), refd to. [para. 107].

King v. Leahy (1991), 109 N.S.R.(2d) 163; 297 A.P.R. 163 (T.D.), refd to. [para. 107].

Counsel:

L. Samuel Kravinchuk, for the plaintiff;

Robert Feraco (Emery Jamieson), for the defendants.

This action was heard before Verville, J., of the Alberta Court of Queen's Bench, who delivered the following decision on March 10, 2004.