Heller v. Martens,

• Judge: O'Leary, Hunt and Fruman, JJ.A.
• Neutral Citation: 2002 ABCA 122
• Citation: 2002 ABCA 122,(2002), 303 A.R. 84 (CA),213 DLR (4th) 124,[2002] 9 WWR 71,303 AR 84,4 Alta LR (4th) 51,12 CCLT (3d) 255,[2002] AJ No 638 (QL),113 ACWS (3d) 1100,26 MVR (4th) 282,(2002), 303 AR 84 (CA),303 A.R. 84,213 D.L.R. (4th) 124,[2002] A.J. No 638 (QL)
• Date: 18 January 2001
• Court: Court of Appeal (Alberta)

Heller v. Martens (2002), 303 A.R. 84 (CA);

    273 W.A.C. 84

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JN.039

Darryl Wayne Heller (plaintiff/respondent) v. Kay Martens and the Public Trustee of the Province of Alberta as Administrator Ad Litem of the Estate of Henry H. Martens (defendants/appellants)

(00-18815; 2002 ABCA 122)

Indexed As: Heller v. Martens et al.

Alberta Court of Appeal

O'Leary, Hunt and Fruman, JJ.A.

May 15, 2002.

Summary:

Martens ran a stop sign and collided with a milk van driven by Heller. Heller was injured. The milk van, owned by Heller's employer (a dairy) was not equipped with a seat belt. Martens admitted responsibility for the accident. At issue was whether Heller was contributorily negligent for failing to wear a seat belt and, if so, the proper apportionment of liability. Although the dairy was not named in the action, given s. 23(2) of the Workers' Compensation Act, the court was required to determine the extent of the liability of both Heller and the dairy.

The Alberta Court of Queen's Bench found that Heller's injuries would have been less serious if he had worn a seat belt. The court concluded that Heller was contributorily negligent and fixed Heller's and the dairy's collective liability at 25%. Martens appealed the 25% apportionment. At issue was whether liability in seat belt cases should be apportioned based on overall fault, known as the comparative blameworthiness approach, or based on the extent to which the injuries would have been reduced had a seat belt been worn, known as the causation approach.

The Alberta Court of Appeal, O'Leary, J.A., dissenting, dismissed the appeal. The court held that the comparative blameworthiness approach was the preferred approach and that the trial judge considered the appropriate factors and did not commit an error of law or a palpable and overriding error. O'Leary, J.A., was generally in agreement with the approach to apportionment taken by the majority, but was of the opinion that the attribution of 25% responsibility to Heller did not reflect a proper application of the principles of apportionment in light of the evidence and the trial judge's findings of fact. O'Leary, J.A., would have allowed the appeal and reduced Heller's recovery by 50% because of his contributory negligence.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment (incl. seat belts) - [See both Torts - Topic 6603].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - Martens ran a stop sign and collided with a milk van driven by Heller - Heller was injured - The milk van, owned by Heller's employer (a dairy) was not equipped with a seat belt - Martens admitted responsibility for the accident - At issue was whether Heller was contributorily negligent for failing to wear a seat belt and, if so, the proper apportionment of liability - The trial judge found that Heller's injuries would have been less serious if he had worn a seat belt - The trial judge concluded that Heller was contributorily negligent and fixed Heller's and the dairy's collective liability at 25% - The Alberta Court of Appeal affirmed the apportionment of liability - The court held that liability in seat belt cases should be apportioned based on overall fault, known as the comparative blameworthiness approach, and that the trial judge considered the appropriate factors and did not commit an error of law or a palpable and overriding error - See paragraphs 1 to 53.

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - The plaintiff in a motor vehicle accident case was found contributorily negligent for failing to wear a seat belt and his liability was fixed at 25% - The defendant appealed the apportionment of liability - At issue was whether liability in seat belt cases should be apportioned based on overall fault, known as the comparative blameworthiness approach, or based on the extent to which the injuries would have been reduced had a seat belt been worn, known as the causation approach - The Alberta Court of Appeal stated that "[t]he pure causation approach has little judicial support in this province, operates much like the abolished last clear chance doctrine and fails to address the primary objectives of tort law. For these reasons, the more integrated approach of comparative blameworthiness is preferred" - See paragraph 29.

Torts - Topic 6630

Defences - Contributory negligence - Particular cases - Failure to use safety equipment (incl. seat belts) - [See both Torts - Topic 6603].

Cases Noticed:

Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43; 145 D.L.R.(4th) 263 (C.A.), refd to. [para. 12].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 14].

Labbee et al. v. Peters et al. (1996), 201 A.R. 241 (Q.B.), affd. (1999), 237 A.R. 382; 197 W.A.C. 382 (C.A.), refd to. [para. 15].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 15].

Jivraj v. Fischer (1992), 124 A.R. 81 (Q.B.), refd to. [para. 19].

Gamache v. Basarara (1993), 137 A.R. 8; 43 M.V.R.(2d) 251 (Q.B.), refd to. [para. 21].

Abbott v. Kasza (1976), 71 D.L.R.(3d) 581 (Alta. C.A.), refd to. [para. 25].

Dobson v. Dobson and Carter, [1999] 2 S.C.R. 753; 242 N.R. 201; 214 N.B.R.(2d) 201; 547 A.P.R. 201, refd to. [para. 26].

Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 100 B.C.A.C. 212; 163 W.A.C. 212; 43 B.C.L.R.(3d) 219 (C.A.), refd to. [paras. 31, 67].

Philip v. Hironaka (1997), 210 A.R. 1 (Q.B.), refd to. [para. 31].

Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.), refd to. [para. 32].

Dao v. Sabatino et al. (1996), 75 B.C.A.C. 185; 123 W.A.C. 185; 29 C.C.L.T.(2d) 62 (C.A.), refd to. [para. 32].

Deschamps v. Chu (1997), 32 O.T.C. 32 (Gen. Div.), refd to. [para. 33].

Martin v. Listowel Memorial Hospital et al. (2000), 138 O.A.C. 77; 192 D.L.R.(4th) 250 (C.A.), refd to. [para. 33].

Anderson v. Stevens (1981), 125 D.L.R.(3d) 736 (B.C.S.C.), refd to. [para. 33].

Lord Nelson Hotel Ltd. et al. v. Cambrian Construction Ltd. et al. (1976), 17 N.S.R.(2d) 336; 19 A.P.R. 336; 1 C.C.L.T. 345 (C.A.), refd to. [para. 33].

Braun Estate v. Vaughan (2000), 145 Man.R.(2d) 35; 218 W.A.C. 35 (C.A.), refd to. [para. 33].

Aynsley v. Toronto General Hospital, [1968] 1 O.R. 425 (C.A.), affd. [1972] S.C.R. 435, refd to. [para. 34].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 272, refd to. [para. 34].

Bruce v. McIntyre, [1954] 2 D.L.R. 799 (Ont. C.A.), affd. [1955] S.C.R. 251, refd to. [para. 34].

Chamberland v. Fleming (1984), 54 A.R. 291; 12 D.L.R.(4th) 688 (Q.B.), refd to. [para. 34].

Crothers v. Northern Taxi (1957), 10 D.L.R.(2d) 87 (Man. C.A.), refd to. [para. 34].

Clyke v. Blenkhorne (1958), 13 D.L.R.(2d) 293 (N.S.S.C.), refd to. [para. 34].

Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 142 B.C.A.C. 113; 233 W.A.C. 113; 80 B.C.L.R.(3d) 153; 2 C.C.L.T.(3d) 53 (C.A.), refd to. [paras. 35, 69].

Giuliani v. Saville et al. (1999), 133 B.C.A.C. 164; 217 W.A.C. 164 (C.A.), refd to. [para. 35].

Davies v. Swan Motor Co. (Swansea) Ltd., [1949] 2 K.B. 291, refd to. [para. 36].

Froom v. Butcher, [1976] 1 Q.B. 286 (C.A.), refd to. [para. 37].

Jones v. Wilkins, [2000] E.W.J. No. 6965, refd to. [para. 37].

Pharand v. Banks, [1983] B.C.J. No. 1048 (S.C.), refd to. [para. 39].

Uyeyama v. Wittenberg (1985), 60 B.C.L.R. 387 (S.C.), affd. [1985] B.C.J. No. 1883 (C.A.), refd to. [para. 39].

Gray v. Macklin et al., [2000] O.T.C. 866; 4 C.C.L.T.(3d) 13 (Sup. Ct.), refd to. [para. 39].

Heeney v. Best et al. (1979), 28 O.R.(2d) 71 (C.A.), refd to. [para. 42].

Fowler et al. v. Schneider National Carriers Ltd. et al. (2001), 193 N.S.R.(2d) 206; 602 A.P.R. 206 (C.A.), refd to. [para. 42].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1 (S.C.C.), refd to. [paras. 48, 72].

British Fame v. MacGregor, [1943] A.C. 197, refd to. [para. 50].

Sparks v. Thompson, [1975] 1 S.C.R. 618; 1 N.R. 387; 6 N.S.R.(2d) 481, refd to. [para. 50].

Van Paassen v. Burch et al. (1994), 159 A.R. 365 (Q.B.), varied (1995), 174 A.R. 387; 102 W.A.C. 387 (C.A.), refd to. [para. 50].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 72].

St-Jean v. Mercier (2002), 282 N.R. 310 (S.C.C.), refd to. [para. 72].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 2000, c. C-27, sect. 1(1) [para. 2].

Authors and Works Noticed:

Alberta Law Reform Institute, Report 75, "Last Clear Chance" Rule (1997), p. 4 [para. 11].

Fleming, John G., The Law of Torts (8th Ed. 1992), pp. 273, 274 [para. 34].

Gravells, N., Three Heads of Contributory Negligence (1977), 93 L.Q. Rev. 581, pp. 594 to 610 [para. 36].

Klar, L.N., Tort Law (2nd Ed. 1996), pp. 373 [para. 16]; 374 [paras. 16, 30].

Counsel:

F.A. Mason, for the appellants;

D.B. Stephenson, for the respondent.

This appeal was heard on January 18, 2001, before O'Leary, Hunt and Fruman, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was filed on May 15, 2002, including the following opinions:

Fruman, J.A. (Hunt, J.A., concurring) - see paragraphs 1 to 53;

O'Leary, J.A., dissenting - see paragraphs 54 to 75.