H.C. v. Loo, (2003) 403 A.R. 212 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 17, 2002
• Citations: (2003), 403 A.R. 212 (QB);2003 ABQB 52

H.C. v. Loo (2003), 403 A.R. 212 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.046

H.C. (plaintiff) v. Anthony Loo and Charlotte Loo (defendants)

(Action No. 9803-04585; 2003 ABQB 52)

Indexed As: H.C. v. Loo

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

January 21, 2003.

Summary:

In April 1996, the plaintiff pedestrian was crossing the road at a "T" intersection when she was hit by a car driven by the defendant. The plaintiff suffered significant injuries, including a closed head injury. Her recovery was complicated by the fact that in December 1999, she suffered a seizure which caused brain damage. She was made a dependent adult by court order and was living in a care facility. The plaintiff sued for damages.

The Alberta Court of Queen's Bench apportioned liability for the accident equally between the plaintiff and the defendant on the basis that neither was keeping a proper lookout. The court awarded the plaintiff general damages of $200,000, $7,500 for loss of chance of future earnings, $632,087.62 for cost of future care, $65,638.19 for cost of pretrial care, as well as special damages, for a total of $907,546.81. That amount was to be divided in half to take into account the equal apportionment of liability.

Editor's Note: The Alberta Court of Appeal subsequently dismissed the plaintiff's appeal from the apportionment of liability and the award for loss of past and future income. However, the court increased the amount awarded to the plaintiff for pretrial care (see 384 A.R. 200; 367 W.A.C. 200).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - In April 1996, the 41 year old plaintiff suffered significant injuries in a motor vehicle accident, including a fractured left humerus, a fracture of her left tibia and fibula, fractures of facial bones, facial lacerations and a closed head injury - In December 1999, the plaintiff suffered a seizure which caused brain damage - She was able to speak, care for her own basic needs, and do many activities - However, her brain damage made her unpredictable - She had poor judgment and could exhibit inappropriate behaviour - She required 24 hour supervision and could not live independently - She had been made a dependent adult and was living in a care facility - She still had pain and decreased motion in her left arm - The Alberta Court of Queen's Bench assessed the plaintiff's general damages at $200,000 - The court concluded that the head injury that the plaintiff suffered in the motor vehicle accident materially contributed to her seizure in 1999 and there should be no reduction in the defendant's liability for the portion of the plaintiff's brain injury attributable to the seizure - See paragraphs 83 to 95.

Damage Awards - Topic 105

Injury and death - Head injuries - Skull fracture and closed head injuries - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 106

Injury and death - Head injuries - Seizures - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 150

Injury and death - Multiple injuries - General - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - In April 1996, the 41 year old plaintiff suffered significant injuries in a motor vehicle accident, including a closed head injury - In December 1999, she suffered a seizure which caused brain damage - She had been made a dependent adult and was living in a care facility - The plaintiff had not been employed for many years before the accident - She was obese and had back problems - She also had a history of drug and alcohol abuse - The Alberta Court of Queen's Bench concluded that the plaintiff would not have become employed in the period prior to the trial and that it was unlikely that she would have become employed after the trial - However, the court held that that possibility existed, however unlikely it might have been - The court found that there was no more than a 5% chance that the plaintiff would have returned to the work force before age 60 and it awarded the plaintiff $7,500 for that loss of chance - Other than that arbitrary amount, the court awarded no amount for past or future loss of income - See paragraphs 97 to 101.

Damages - Topic 1288

Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - The Alberta Court of Queen's Bench stated that an award for the cost of pretrial care should not be reduced merely because the care was provided by family members - See paragraph 128.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - [See Damage Awards - Topic 493 ].

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - The 41 year old plaintiff suffered significant injuries in a motor vehicle accident, including a closed head injury - She subsequently suffered a seizure which caused brain damage - She had been made a dependent adult and was living in a care facility - The defendant argued that the court should reduce any award for cost of future care by 50% to take into account certain negative contingencies, including the fact that prior to her accident the plaintiff was susceptible to lessening of mental facility, and would likely have had a shortened life because of her alcoholism and drug use as well as her depression - The Alberta Court of Queen's Bench discounted the award for future care by 20% to take into account those negative contingencies - See paragraphs 121 to 125.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - The 41 year old plaintiff suffered significant injuries in a motor vehicle accident, including a closed head injury - She subsequently suffered a seizure which caused brain damage - She was able to speak, care for her own basic needs, and do many activities - However, she required 24 hour supervision and could not live independently - She had been made a dependent adult and was living in a care facility - In assessing the plaintiff's damages for cost of future care, the Alberta Court of Queen's Bench awarded an amount that would permit the plaintiff to afford a combination of group home care and home care - The court was satisfied that there was precedent for that type of award - The court made the order to ensure that in the unlikely event that group home care failed, the plaintiff would not have to go into institutional care - The court concluded that an award that would allow up to five years of home care was appropriate - Other than for those five years, the plaintiff was awarded an amount that would cover group home care - See paragraphs 118 to 119.

Highways - Topic 12

General and definitions - Definitions - Crosswalk - The plaintiff pedestrian was crossing the road at a "T" intersection when she was hit by a car driven by the defendant - There was no marked crosswalk - The Alberta Court of Queen's Bench held that the plaintiff was not in a "crosswalk" as defined in s. 1(d.1) of the Highway Traffic Act when she was hit - The term "crosswalk" as set out in s. 1(d.1) of the Act had to be construed narrowly - In this case, there was no distinctly marked pedestrian crossing as described in s. 1(d.1)(ii) - Nor was there a crosswalk as defined in s. 1(d.1)(i) - Section 1(d.1)(i) required that there be a sidewalk running from each side of the road to be crossed - In the case of a T intersection, even where the "stem" road had sidewalks on each curb, they did not continue on the opposite side of the road that formed the top of the T - Therefore there was nothing to which one could extend the imaginary lateral lines that the definition in s. 1(d.1)(i) called for - See paragraphs 50 to 51.

Highways - Topic 12

General and definitions - Definitions - Crosswalk - The Alberta Court of Queen's Bench stated that "the term 'common law crosswalk' has been used in various of the B.C. cases to describe a situation which exists where a crossing point does not meet the strict parameters of the definition of a crosswalk in the Highway Traffic Act, but nonetheless both drivers and pedestrians would reasonably consider that there would be a high likelihood of the location being reasonably used for pedestrian crossing" - The court held that the definition of "crosswalk" in the Alberta Highway Traffic Act should not be interpreted to include a so called common law crosswalk - The court stated that where the statute set out a specific right of way to be enjoyed by a pedestrian in a crosswalk, that provision had to be taken to refer to the definition of crosswalk as it existed in the statute - See paragraphs 48 to 49.

Motor Vehicles - Topic 46

General and definitions - Definitions - Crosswalk defined - [See both Highways - Topic 12 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The plaintiff suffered significant injuries in an April 1996 motor vehicle accident, including a closed head injury - In December 1999, she suffered a "status epilepticus" seizure, which caused brain damage - She was made a dependent adult by court order and was living in a care facility - A neurologist testified that about 35% of patients with a subdural haematoma such as that suffered by the plaintiff went on to have seizures and that they could occur years after the brain trauma - His opinion was that the most likely cause of the December 1999 seizure was the plaintiff's April 1996 head injury - The defendant argued that the seizure might have been caused by a drug overdose or might have been an alcoholic seizure (the plaintiff had a long history of drug and alcohol abuse) - The Alberta Court of Queen's Bench concluded that the head injury that the plaintiff suffered in the 1996 motor vehicle accident materially contributed to her seizure - The 35% possibility of such injury was not so remote that the court should ignore it - There would therefore be no reduction in the defendant's liability for the portion of the plaintiff's brain injury that was attributable to the seizure - See paragraphs 70 to 78.

Torts - Topic 354

Negligence - Motor vehicle - Pedestrians and bicyclists - Street or highway crossing - Intersection - The plaintiff pedestrian was crossing the road at a busy "T" intersection when she was hit by a car driven by the defendant - The intersection was equipped with traffic lights, but they were not operational - There was no marked crosswalk - The Alberta Court of Queen's Bench apportioned liability for the accident 50/50 between the plaintiff and the defendant on the basis that neither was keeping a proper lookout - The plaintiff had an obligation to look out for traffic before she began to cross and not to cross in the face of the oncoming traffic - She had an even greater obligation because she was not crossing in a crosswalk, she did not cross at the corner but instead began to cross a number of metres south of the intersection, and the traffic signals were non-operational - The defendant also should have been keeping a look out - It was a busy intersection frequently used by pedestrians and the defendant should have been on her guard because of the non-functioning traffic signals - See paragraphs 52 to 69.

Torts - Topic 356

Negligence - Motor vehicle - Pedestrians and bicyclists - Street or highway crossing - Crosswalk - [See both Highways - Topic 12 ].

Torts - Topic 361

Negligence - Motor vehicle - Pedestrians and bicyclists - Duty of pedestrians and bicyclists to take reasonable care - [See Torts - Topic 354 ].

Torts - Topic 362

Negligence - Motor vehicle - Pedestrians and bicyclists - Contributory negligence of - [See Torts - Topic 354 ].

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - [See Torts - Topic 354 ].

Torts - Topic 392

Negligence - Motor vehicle - Standard of care of driver - Respecting pedestrians and bicyclists - [See Torts - Topic 354 ].

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - [See Torts - Topic 354 ].

Words and Phrases

Crosswalk - The Alberta Court of Queen's Bench considered the meaning of "crosswalk" as defined in s. 1(d.1)(i) of the Highway Traffic Act, R.S.A. 2000, c. H-8 - See paragraphs 26 to 51.

Cases Noticed:

Love et al. v. Subdivision and Development Appeal Board (Flagstaff (County)) (2002), 317 A.R. 261; 284 W.A.C. 261; 2002 ABCA 292, refd to. [para. 29].

R. v. Chemago (1990), 112 A.R. 181 (Prov. Ct.), consd. [para. 32].

Jordison v. Grabham (1999), 122 B.C.A.C. 262; 200 W.A.C. 262 (C.A.), consd. [para. 37].

Fabellorin v. Peterson (1994), 93 B.C.L.R.(2d) 105 (C.A.), refd to. [para. 38].

Cornell v. Arrell (1988), 3 Y.R. 154 (S.C.), consd. [para. 40].

Colter v. Landaverde et al. (1999), 24 B.C.T.C. 310 (S.C.), consd. [para. 44].

Liston v. Striegler et al. (1996), 77 B.C.A.C. 226; 126 W.A.C. 226 (C.A.), refd to. [para. 46].

Callahan et al. v. Cairns (1995), 67 B.C.A.C. 153; 111 W.A.C. 153 (C.A.), refd to. [para. 46].

Chaboter v. Reimer, [1987] B.C.J No. 378 (C.A.), refd to. [para. 46].

Lungu v. Popatia, [1998] B.C.T.C. Uned. 393 (S.C.), refd to. [para. 46].

May v. Julien, [1989] B.C.J. No. 2224 (S.C.), refd to. [para. 46].

Winnipeg Electric Co. v. Geel, [1932] A.C. 690 (P.C.), refd to. [para. 63].

Williams v. Fedoryshin, [1959] S.C.R. 249, refd to. [para. 63].

Feener v. MacKenzie, [1972] S.C.R. 525; 3 N.S.R.(2d) 829, refd to. [para. 64].

Tracey v. Van Loon (1986), 72 A.R. 311 (C.A.), refd to. [para. 64].

Nice v. Jane Doe - see Nice v. Calgary (City) et al.

Nice v. Calgary (City) et al. (2000), 266 A.R. 118; 228 W.A.C. 118 (C.A.), refd to. [para. 64].

Eisnor v. Gracie (1987), 82 N.S.R.(2d) 41; 207 A.P.R. 41 (C.A.), refd to. [para. 65].

Gardiner and Kerr v. Scherer (1999), 172 N.S.R.(2d) 369; 524 A.P.R. 369 (C.A.), refd to. [para. 65].

Hartman v. Fisette (1976), 8 N.R. 301; 66 D.L.R.(3d) 516 (S.C.C.), refd to. [para. 65].

Wolksi v. Thomas (1991), 48 C.C.L.I. 221 (Alta. C.A.), refd to. [para. 66].

Lalonde v. Saskatchewan Government Insurance (1998), 164 Sask.R. 219 (Q.B.), refd to. [para. 66].

Athey v. Leonati, [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 78].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 83].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, refd to. [para. 83].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480, refd to. [para. 83].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; 129 D.L.R.(3d) 263, refd to. [para. 94].

Anderson v. James et al. (1993), 7 B.C.A.C. 205; 15 W.A.C. 205; 87 D.L.R.(4th) 419 (C.A.), consd. [para. 100].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 122].

Bain v. Board of Education of Calgary et al. (1993), 146 A.R. 321 (Q.B.), refd to. [para. 128].

Statutes Noticed;

Highway Traffic Act, R.S.A. 2000, c. H-8, sect. 1(d.1) [para. 27].

Authors and Works Noticed:

Canada, Statistics Canada, Aggregate Productivity Measures; The Consumer Price Index; Earnings of Men and Women (EMW) (1997-99), generally [para. 101].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 35 [para. 29].

Counsel:

Carol L. Frieser and Edward M.R. Robinson, for the plaintiff;

Kenneth Haluschak, for the defendants.

This action was heard on November 25 to December 17, 2002, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on January 21, 2003.