Hisco v. Stitz, 2008 MBQB 45

• Judge: Kaufman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 08, 2008
• Jurisdiction: Manitoba
• Citations: 2008 MBQB 45;(2008), 224 Man.R.(2d) 252 (QB)

Hisco v. Stitz (2008), 224 Man.R.(2d) 252 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. MR.010

Jillian Hisco (plaintiff) v. Elaine Stitz (defendant)

(CI 01-01-26125; 2008 MBQB 45)

Indexed As: Hisco v. Stitz

Manitoba Court of Queen's Bench

Winnipeg Centre

Kaufman, J.

February 8, 2008.

Summary:

In May 1993, the then 11 year old plaintiff bicyclist proceeded to make a left hand turn while facing a green light at an intersection. The defendant driver, having the right of way and proceeding from the opposite direction, struck the plaintiff. The plaintiff brought a negligence action for damages.

The Manitoba Court of Queen's Bench found both the plaintiff and defendant negligent and equally at fault. The court dismissed a claim for past and future loss of income on the ground that there was no causal connection between the injuries and the plaintiff's later reduced income because of her failure to complete high school. The court assessed $40,000 general damages for nonpecuniary loss for the fracture of both legs and significant scarring on her legs.

Damage Awards - Topic 132

Injury and death - Leg injuries - Scarring - In May 1993, the then 11 year old plaintiff bicyclist was struck in an intersection by the defendant driver - Liability was apportioned equally - The plaintiff suffered a fractured right tibia, fibula and femur and fractured left femur - She was hospitalized for one month - She endured multiple skin grafts ending in 2000 and was left with permanent scarring on her legs - The fractures resolved themselves and left no permanent impairment - The Manitoba Court of Queen's Bench assessed $80,000 general damages for nonpecuniary loss - See paragraphs 99 to 102.

Damage Awards - Topic 142

Injury and death - Leg injuries - Fracture - [See Damage Awards - Topic 132 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - In 1993, the 11 year old plaintiff suffered two broken legs when struck by a vehicle - The plaintiff, now 25, claimed damages for past and future income loss, submitting that the injuries she suffered caused or materially contributed to her dropping out of high school, thus limiting her to low-paying jobs - The Manitoba Court of Queen's Bench held that whether the "but for" test or "material contribution" test was applied, the plaintiff failed to establish a causal connection between her injuries and her later decision to drop out of high school - "But for" the injuries, the plaintiff would not have finished high school in any event - The injuries did not materially contribute, beyond the de minimis range, to the failure to finish high school - The court noted that the plaintiff had a history of behavioural problems pre-dating the accident - She had an anti-authoritarian attitude - Also relevant was the fact that the plaintiff's best ever performance in school was in the 1.5 years after the accident - The injuries resolved without any impairment, other than some scarring on her legs that necessitated multiple skin grafts up to 2000 - See paragraphs 29 to 98.

Torts - Topic 359

Negligence - Motor vehicle - Pedestrians and bicyclists - Children on highways and streets - The 11 year old plaintiff bicyclist proceeded to make a left hand turn while facing a green light at an intersection - The defendant driver, having the right of way and proceeding from the opposite direction, struck the plaintiff in the intersection - A vehicle in the left turning lane on the other side of the intersection from the plaintiff obstructed the view of both the plaintiff and defendant - The Manitoba Court of Queen's Bench found both parties negligent and equally at fault - The intersection was near a school and residential area - The defendant was going at or under the speed limit and did not see the plaintiff until it was too late to avoid hitting her - The defendant was entitled to proceed on the assumption that all other vehicles would observe the rules regulating traffic, but, in the circumstances, should have proceeded more cautiously given the obstructed view - If the onus to prove negligence was on the plaintiff, the defendant's negligence might not have been established - However, the defendant had the onus under s. 153(1) of the Highway Traffic Act to disprove that she was "entirely or solely" responsible for the accident - As the evidence failed to establish whether the defendant did not see the plaintiff in time to take evasive action because of the obstructed view or because of inattention, the defendant failed to discharge that statutory burden - However, the plaintiff was contributorily negligent - Bicyclists were bound by the rules of the road and the plaintiff failed to yield the right of way, attempting an unsafe left turn when faced with an obstructed view - See paragraphs 1 to 28.

Torts - Topic 362

Negligence - Motor vehicle - Pedestrians and bicyclists - Contributory negligence of - [See Torts - Topic 359 ].

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - [See Torts - Topic 359 ].

Torts - Topic 439

Negligence - Motor vehicle - Rules of the road - Intersections - Turning left - Right of way - [See Torts - Topic 359 ].

Torts - Topic 550

Negligence - Motor vehicle - Statutory burden on owner or operator - [See Torts - Topic 359 ].

Cases Noticed:

Brewster v. Swain et al., [2007] B.C.A.C. Uned. 80; 2007 BCCA 347, refd to. [para. 5].

Melnychuk v. Moore and Associated Beer Distributors Ltd. (1989), 57 Man.R.(2d) 174, refd to. [para. 5].

Geel v. Winnipeg Electric Co., [1932] A.C. 690 (P.C.), refd to. [para. 5].

Mikuletic v. Harvie (1979), 1 Man.R.(2d) 156 (C.A.), refd to. [para. 5].

Bese v. Mayan, [1971] B.C.J. No. 467 (S.C.), refd to. [para. 5].

Callow v. Rowlett, [1985] B.C.J. No. 262 (S.C.), refd to. [para. 5].

Chohan v. Wayenberg (1990), 67 D.L.R.(4th) 318 (B.C.C.A.), refd to. [para. 5].

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. 5].

Hodder et al. v. Waddleton and Waddleton's Store Ltd. (1993), 110 Nfld. & P.E.I.R. 222; 346 A.P.R. 222 (Nfld. T.D.), refd to. [para. 5].

Sharp v. Binder, [1988] B.C.J. No. 2070 (S.C.), refd to. [para. 5].

Hnatuk and Hnatuk v. Trapp and R. (1976), 10 N.R. 97; 71 D.L.R.(3d) 63 (F.C.A.), refd to. [para. 5].

Turbanish v. Eggertson, [1982] B.C.J. No. 1077 (S.C.), refd to. [para. 5].

Meyer v. Neuman et al., [2004] A.R. Uned. 243 (Q.B.), refd to. [para. 5].

Pacheco et al. v. Robinson et al. (1993), 22 B.C.A.C. 185; 38 W.A.C. 185 (C.A.), refd to. [para. 5].

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 5].

Sandhu v. Gill, [1999] B.C.T.C. Uned. 730 (S.C.), refd to. [para. 5].

Robinson v. Wong, [2007] B.C.T.C. Uned. 387 (S.C.), refd to. [para. 5].

Tran v. Bachmann et al., [2004] B.C.T.C. Uned. 412 (S.C.), refd to. [para. 5].

Tripp v. Peck et al. (2000), 190 N.S.R.(2d) 1; 594 A.P.R. 1 (S.C.), refd to. [para. 5].

Canadian Pacific Ltd. et al. v. Gill et al., [1973] S.C.R. 654, refd to. [para. 21].

R. v. Borsch (R.G.) (2007), 220 Man.R.(2d) 160; 407 W.A.C. 160; 2007 MBCA 111, refd to. [para. 22].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 2007 SCC 7, refd to. [para. 80].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 80].

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, refd to. [para. 82].

Purpur v. Parkinson (2003), 178 Man.R.(2d) 1; 2003 MBQB 152, refd to. [para. 93].

Jablonski v. Nault and Mladjan (1990), 66 Man.R.(2d) 195 (Q.B.), refd to. [para. 99].

Kharitonov v. Coupland, [1997] B.C.T.C. Uned. 914 (S.C.), refd to. [para. 99].

Kachur v. White et al. (1999), 141 Man.R.(2d) 75 (Q.B.), refd to. [para. 100].

Welburn v. Westfair Foods Ltd. (2000), 146 Man.R.(2d) 114 (Q.B.), refd to. [para. 100].

Malinoski v. 2727677 Manitoba Inc. et al. (1995), 105 Man.R.(2d) 145 (Q.B.), refd to. [para. 100].

Hawman v. Regina Exhibition Association Ltd. et al. (1999), 186 Sask.R. 225 (Q.B.), refd to. [para. 100].

Carr v. Anderson, [2000] O.T.C. Uned. 568 (Sup. Ct.), refd to. [para. 100].

Michalak v. Oakville (Town), [2000] O.T.C. 837 (Sup. Ct.), refd to. [para. 100].

Counsel:

Shauna McCarthy, for the plaintiff;

Michael D. Richards and Kenneth J. Muys, for the defendant.

This action was heard before Kaufman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 8, 2008.