Hildebrandt v. Botkin (W.F.) Construction Ltd., (1998) 162 Sask.R. 92 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 23, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 162 Sask.R. 92 (QB)

Hildebrandt v. Botkin Constr. Ltd. (1998), 162 Sask.R. 92 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. FE.008

Matthew Robert Hildebrandt (plaintiff) v. W.F. Botkin Construction Ltd. (defendant)

(1990 Q.B. No. 1261)

Indexed As: Hildebrandt v. Botkin (W.F.) Construction Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

January 23, 1998.

Summary:

The plaintiff lost four fingers as a result of an accident which occurred when he was loading grain with an auger for his employer. The plaintiff sued his employer for damages. Counsel for the employer conceded that the employer was liable. At issue was the amount of damages and the question of contributory negligence.

The Saskatchewan Court of Queen's Bench found that the plaintiff was not contributorily negligent. The court assessed the plaintiff's damages and awarded judgment according­ly.

Damage Awards - Topic 34

Injury and death - Arm and hand injuries - Fingers - The plaintiff truck driver lost four fingers as a result of a farm accident which occurred in 1988 when he was 25 years old - The plaintiff underwent sur­gery described as a "revision amputation of the left hand except the left thumb" - Prior to the acci­dent, the plaintiff participated in several sports and had many hobbies - Since the accident he had experienced pain and suffered from depression - The pain had been subsiding, but was aggravated by touching, pressing, sudden contact and exposure to cold - The Saskatchewan Court of Queen's Bench awarded the plaintiff $75,000 general damages for pain and suffering and loss of amenities, $31,080 for pretrial loss of income, $50,000 for loss of future income and $3,000 for loss of housekeeping capacity - See paragraphs 19 to 30.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Dam­age Awards - Topic 34 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 34 ].

Torts - Topic 38

Negligence - Standard of care - Particular persons and relationships - Employers (master and servant) - The plaintiff lost four fingers as a result of an accident which occurred when he was loading grain with an auger for his employer - The auger, which was owned by the employer, had no protective mesh guard to prevent a hand or limb from being caught in the auger screw mechanism - The plaintiff had no experience or familiarity with farm equipment - He received no instructions as to how to use the auger, nor was he warned with respect to its dangers - The Saskatchewan Court of Queen's Bench held that the plaintiff's employer was liable and the plaintiff was not contributorily negli­gent - The employer had a duty of care to take reasonable care for the safety of its employees - See para­graphs 16 to 18.

Torts - Topic 78

Negligence - Duty of care - Effect of statutory precautions or safeguards on the scope of the duty of care - The Saskatchewan Court of Queen's Bench stated that "[a] statutory formulation of a duty of care in a penal statute may provide a specific useful standard of reasonable conduct upon which a civil court may rely if it so chooses. In other words, the statute or regulation may be taken as indicating that noncompliance demonstrates conduct which falls below the standard required by the community and thus is negligent" - See paragraph 12.

Torts - Topic 764

Negligence - Farming operations - Oper­ation and maintenance of equipment - [See Torts - Topic 38 ].

Torts - Topic 6601

Defences - Contributory negligence - Gen­eral - What constitutes contributory negli­gence - [See Torts - Topic 38 ].

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9, consd. [para. 13].

McNabb v. Glenn and Glenn (1981), 11 Sask.R. 235 (Q.B.), consd. [para. 17].

Bunce v. Flick et al. (1991), 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), consd. [para. 23].

Chiorando v. Thelland, [1995] B.C.J. No. 446 (S.C.), consd. [para. 24].

Hrynchuk v. Fetterly, [1995] 5 W.W.R. 48; 101 Man.R.(2d) 51 (Q.B.), consd. [para. 25].

Greggor v. Cook et al. (1992), 79 Man.R.(2d) 100 (Q.B.), consd. [para. 26].

Cavan v. Wilcox and Pugh (1973), 7 N.B.R.(2d) 192 (C.A.), consd. [para. 27].

Menkerios v. Acklands Ltd. (1994), 126 Sask.R. 304 (Q.B.), consd. [para. 28].

Authors and Works Noticed:

Linden, Allen M., Canadian Tort Law (4th Ed.), p. 427 [para. 16].

Counsel:

Sidney G. Segal, for the plaintiff;

James A. Griffin, Q.C., for the defendant.

This action was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 23, 1998.