Holizki Estate et al. v. Public Trustee (Alta.) et al., (2008) 462 A.R. 85 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 09, 2008
• Citations: (2008), 462 A.R. 85 (QB);2008 ABQB 716

Holizki Estate v. Public Trustee (2008), 462 A.R. 85 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.078

Lorene Mary Holizki as the Administrator of the Estate of Kalei Jasmine Holizki, deceased, and Lorene Mary Holizki (plaintiffs) v. The Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, the said Andrew Derek Fisher, deceased, the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Anna Elizabeth Lane, Administrator of the Estate of Nathan Gregory Mossfeldt, deceased, the said Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., Aviva Insurance Company of Canada, formerly named CGU Insurance Company of Canada, and John Doe (defendants)

(0301 10461)

Ronald Kenneth McCabe (plaintiff) v. Edward Wolfman as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Jane Doe I, John Doe I, Edward Wolfman as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Jane Doe II and John Doe II (defendants)

(0301 10887)

Jared Vandenbrink (plaintiff) v. The Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, the said Andrew Derek Fisher, deceased, the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, the said Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., John Doe I, John Doe II, John Doe III, John Doe IV (defendants)

(0301 12518)

Anna Elizabeth Lane, Administratrix of the Estate of Nathan Gregory Mossfeldt, deceased (plaintiff) v. Ronald Kenneth McCabe, City Wide Towing and Recovery Service Ltd., and the Public Trustee for the Province of Alberta, Administrator ad litem of the Estate of Andrew Derek Fisher, deceased (defendants)

(0301 12653)

Michael McDonough, Laurel McDonough and Michael McDonough as Administrator of the Estate of Trevor Lee Francis McDonough, deceased (plaintiffs) v. The Public Trustee for the Province of Alberta, as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, The Public Trustee for the Province of Alberta as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, Ronald Kenneth McCabe and City Wide Towing and Recovery Service Ltd. (defendants)

(0301 12878)

Philip Joseph Comstock, Administrator of the Estate of Ashley Elizabeth Comstock, deceased, Holly Comstock (plaintiffs) v. City Wide Towing and Recovery Service Ltd., Ronald McCabe, John Doe I, John Doe II, Gary Hansen as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Gary Hansen as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, John Doe III and John Doe IV (defendants)

(0301 13154)

Stephen Brown, Administrator of the Estate of Robert James Brown, deceased, Rosa Brown (plaintiffs) v. City Wide Towing and Recovery Service Ltd., Ronald McCabe, John Doe I, John Doe II, Gary Hansen as Administrator ad litem of the Estate of Andrew Derek Fisher, deceased, Gary Hansen as Administrator ad litem of the Estate of Nathan Gregory Mossfeldt, deceased, John Doe III and John Doe IV (defendants)

(0301 13155; 2008 ABQB 716)

Indexed As: Holizki Estate et al. v. Public Trustee (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

November 21, 2008.

Summary:

Nine teenage friends went camping together. On the return trip the next morning, one of the two cars they were travelling in broke down. Two individuals stayed with the car, while the seven others left in the other car. The first driver became sleepy and another passenger (Fisher) took over the wheel. About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck. Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road. The car returned to its lane and the tow truck tracked it into this lane. The impact flipped the car and it came to rest on its top. The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car. The driver of the truck also survived. Both sustained injuries. This case involved claims on behalf of the passengers in the car against the owner and driver of both the car (Fisher) and the tow truck (McCabe) and a claim by McCabe against Fisher. No claim was advanced by Fisher. Seven separate actions were consolidated into this trial. At issue was liability and apportionment.

The Alberta Court of Queen's Bench held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver. The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained.

Damage Awards - Topic 86

Injury and death - Wrongful death and fatal accidents - Daughter - Nine teenage friends went camping together - On the return trip the next morning, one of the two cars they were travelling in broke down - Two individuals stayed with the car, while the seven others left in the other car - The first driver became sleepy and another passenger (Fisher) took over the wheel - About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck - Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road - The car returned to its lane and the tow truck tracked it into this lane - The impact flipped the car and it came to rest on its top - The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car - The driver of the truck (McCabe) also survived - Both sustained injuries - Six teenagers (two girls, Holizki and Comstock, and three boys, Mossfeldt, Brown and McDonough (collectively, the infant plaintiffs) and the driver, Fisher) were killed - The Alberta Court of Queen's Bench approved damages as agreed by the parties - The estates of each infant plaintiff were awarded: $500,000 damages and $43,000 for bereavement and grief, as stipulated in the Fatal Accidents Act - In addition, special damages were agreed to in the following amounts: McDonough - $16,697.73; Holizki - $19,213.64; Mossfeldt - none; Comstock - $7,518.79; and Brown - $3,132 - See paragraphs 201 to 203.

Damage Awards - Topic 87

Injury and death - Wrongful death and fatal accidents - Son - [See Damage Awards - Topic 86 ].

Damage Awards - Topic 93

Injury and death - Wrongful death and fatal accidents - Bereavement - [See Damage Awards - Topic 86 ].

Damage Awards - Topic 95

Injury and death - Wrongful death and fatal accidents - Special damages (including funeral expenses and monuments) - [See Damage Awards - Topic 86 ].

Damage Awards - Topic 97.1

Injury and death - Wrongful death and fatal accidents - Grief - [See Damage Awards - Topic 86 ].

Torts - Topic 378

Negligence - Motor vehicle - Standard of care of driver - Emergencies - The Alberta Court of Queen's Bench discussed the doctrine of "agony of the moment" or "agony of collision" - The court stated that "[t]he case law establishes limitations on when this doctrine can be invoked. First, the defence is only applicable if the emergent situation is imminent and unforeseen and could not have been reasonably anticipated by the reacting driver. If the defendant driver anticipates a dangerous situation and has sufficient opportunity to apply his brakes or take other evasive action to avoid the collision, but does not, then the doctrine is not applicable and the defendant driver will be held contributorily liable for the resulting damages. ... Second, notwithstanding the emergency situation, the driver is still expected to act in a reasonably competent manner. Even in reacting instantaneously to an 'agony of the moment/collision' situation, the responding driver is required to exercise the standard of care of a reasonably competent person. If the driver's response is inherently unreasonable given the circumstances, he will be found contributorily negligent for the resulting damages. ... Third, ... a reasonably competent driver would not be shocked into inactivity but would undertake some evasive action when first alerted to a dangerous situation. The duty to take reasonable evasive action arises when the possibility of danger first becomes apparent." - See paragraphs 172 to 175.

Torts - Topic 378

Negligence - Motor vehicle - Standard of care of driver - Emergencies - Nine teenage friends went camping together - On the return trip the next morning, one of the two cars they were travelling in broke down - Two individuals stayed with the car, while the seven others left in the other car - The first driver became sleepy and another passenger (Fisher) took over the wheel - About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck - Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road - The car returned to its lane and the tow truck tracked it into this lane - The impact flipped the car and it came to rest on its top - The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car - The driver of the truck (McCabe) also survived - Both sustained injuries - The Alberta Court of Queen's Bench held that there was sufficient evidence to say that Fisher crossed the line first and that McCabe responded - When faced with the oncoming car, McCabe had certain choices: continue to go to the right as he began, to go straight, or go to the left - He chose the latter - While the time for response was restricted, the court found actionable negligence on the part of McCabe which caused or contributed to the collision - Even if this was an unusual situation, not of his own creation, the "mistake" of going to the left was not a mere error of judgment, excusable in the circumstances - McCabe's actions were negligent and did not meet the standard required of any driver, let alone that of a professional driver - McCabe had two reactions to Fisher's presence in his lane: pulling off to the right as was the standard and then he changed his mind and pulled sharply to the left - This was a very dangerous manoeuver - A person's reaction to an emergency had to continue to meet the standard of care of a reasonable and prudent driver in the circumstances, which McCabe did not - See paragraphs 164 to 186.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, "agony of the moment" or "agony of collision" - [See both Torts - Topic 378 ].

Torts - Topic 386

Negligence - Motor vehicle - Standard of care of driver - Dangerous manner of driving - Nine teenage friends went camping together - On the return trip the next morning, one of the two cars they were travelling in broke down - Two individuals stayed with the car, while the seven others left in the other car - The first driver became sleepy and another passenger (Fisher) took over the wheel - About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck - Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road - The car returned to its lane and the tow truck tracked it into this lane - The impact flipped the car and it came to rest on its top - The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car - The driver of the truck (McCabe) also survived - Both sustained injuries - The Alberta Court of Queen's Bench held that there was sufficient evidence to say that Fisher crossed the line first and that McCabe responded - The standard of care owed by Fisher was to act as a reasonable driver - Fisher did not meet the standard of care of a reasonable and prudent driver - Fisher was in all likelihood fatigued and while his blood-alcohol level was below the legal limit, it was some evidence of impairment - He crossed the centre line for no known or defensive reason and went across a double yellow line, he was speeding, hit into the guardrail, and lost control of the car - Fisher created a dangerous situation on a high speed roadway - See paragraphs 143 to 154.

Torts - Topic 396.1

Negligence - Motor vehicle - Standard of care of driver - Professional drivers - Nine teenage friends went camping together - On the return trip the next morning, one of the two cars they were travelling in broke down - Two individuals stayed with the car, while the seven others left in the other car - The first driver became sleepy and another passenger (Fisher) took over the wheel - About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck - Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road - The car returned to its lane and the tow truck tracked it into this lane - The impact flipped the car and it came to rest on its top - The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car - The driver of the truck (McCabe) also survived - Both sustained injuries - The Alberta Court of Queen's Bench discussed the standard of care expected of professional drivers when faced with a head-on collision - The court stated that "when faced with an oncoming vehicle in your lane, the prescribed and expected avoidance tactic would have been for Mr. McCabe to steer to the right; and if that is not enough, to keep going right, even if it means going off the road. The only exception would be when it was impossibly dangerous to go or continue to go to the right, as when there was a cliff off to the right. This standard of going to the right was developed to best avoid the risk of head on collisions, which carry the increased and foreseeable risk of grave injury. Risks are minimized when the driver stays on his side of the road. Not only is that where he is expected to be, but the approaching car can also be expected to correct into its own lane" - See paragraphs 158 to 163.

Torts - Topic 408

Negligence - Motor vehicle - Rules of the road - Driving to left of centre - [See Torts - Topic 386 ].

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - [See Torts - Topic 386 ].

Torts - Topic 552

Negligence - Motor vehicle - Evidence and burden of proof - Failure to avoid situation created by other driver - [See second Torts - Topic 378 ].

Torts - Topic 556

Negligence - Motor vehicle - Evidence and burden of proof - Emergencies or imminent danger - [See both Torts - Topic 378 ].

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - Nine teenage friends went camping together - On the return trip the next morning, one of the two cars they were travelling in broke down - Two individuals stayed with the car, while the seven others left in the other car - The first driver became sleepy and another passenger (Fisher) took over the wheel - About 10 to 15 minutes after the change of drivers, the car was involved in a head on collision with a flatbed tow truck - Before impact the car had gone into the oncoming lane, hit a guardrail and was on the tow truck's side of the road - The car returned to its lane and the tow truck tracked it into this lane - The impact flipped the car and it came to rest on its top - The only passenger in the car to survive was Vandenbrink who was travelling in the trunk and was thrown from the car - The driver of the truck (McCabe) also survived - Both sustained injuries - The Alberta Court of Queen's Bench held that both Fisher and McCabe had not met the standard of care of a reasonable and prudent driver - The negligence of Fisher and McCabe combined to cause the collision and they were jointly and severally liable for the losses sustained - The court held that "Fisher precipitated the sequence of events that led to the collision and should bear the greater percentage of liability. His negligence failed most markedly to live up to the standards of conduct expected. His conduct involved multiple breaches of the relevant statute and he was driving carelessly and with an alcohol level that is significant for someone of his youth and experience. There is, however, no evidence of a deliberate departure from safety rules. Mr. McCabe, a professional driver, drove in a careless fashion, bringing a thirty five foot flatbed tow truck between two vehicles across, almost guaranteeing that there would be high speed contact, with the readily foreseeable result that the smaller vehicle would be greatly damaged and its passengers gravely injured. His responsibility is less however, as he was responding to a situation not of his own creation." - In all the circumstances liability was apportioned at 65% to Fisher and 35% to McCabe - See paragraphs 191 to 199.

Torts - Topic 7383

Joint and concurrent tortfeasors - Contribution between tortfeasors - Considerations in apportionment of fault - The Alberta Court of Queen's Bench reiterated factors which could be considered in assessing the degree of departure from the standard of care of the parties: "1. The nature of the duty owed by the tortfeasor to the injured person ... . 2. The number of acts of fault or negligence committed by a person at fault ... . 3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault ... . 4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy ... . Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis ... . 5. The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy." - See paragraph 194.

Cases Noticed:

Robinson v. Williams Estate et al., [2005] A.R. Uned. A30; 2005 ABQB 659, refd to. [para. 49].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 81].

Gauthier v. Canada, [1945] S.C.R. 143, refd to. [para. 144].

Singh v. Turna (2003), 337 A.R. 192; 20 Alta. L.R.(4th) 44; 2003 ABQB 224, refd to. [para. 144].

Simmons v. Koenig, [2001] A.R. Uned. 68; 12 M.V.R.(4th) 263; 2001 ABQB 152, refd to. [para. 145].

McDonald v. Nguyen (1991), 138 A.R. 81 (Q.B.), refd to. [para. 149].

Masztalar v. Wiens (1994), 46 A.C.W.S.(3d) 1388 (B.C.S.C.), refd to. [para. 150].

Hartman v. Fisette, [1977] 1 S.C.R. 248; 8 N.R. 301, refd to. [para. 152].

Hogan v. McEwan (1976), 10 O.R.(2d) 551 (H.C.), refd to. [para. 170].

Canadian Pacific Railway v. Gill, [1973] S.C.R. 654, refd to. [para. 170].

Corothers v. Slobodian and Poupard, [1975] 2 S.C.R. 633; 3 N.R. 184, refd to. [para. 171].

IllsLey v. Baltzer (1960), 22 D.L.R.(2d) 537 (N.S.S.C.), refd to. [para. 171].

Simpson v. Bender et al. (1995), 176 A.R. 34 (Q.B.), refd to. [para. 171].

Fickell v. Insurance Corp. of British Columbia, [1997] B.C.T.C. Uned. 552 (S.C.), refd to. [para. 173].

Gellie v. Naylor and Laidlaw Transport Ltd. (1986), 15 O.A.C. 129; 55 O.R.(2d) 400 (C.A.), refd to. [para. 173].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1997), 194 A.R. 384 (Q.B.), refd to. [para. 174].

Lloyd v. Fox and Walker (1991), 2 B.C.A.C. 206; 5 W.A.C. 206; 57 B.C.L.R.(2d) 332 (C.A.), leave to appeal refused [1992] 1 S.C.R. ix; 137 N.R. 400 (S.C.C.), refd to. [para. 174].

Gill Estate v. Greyhound Lines of Canada Ltd. (1987), 21 B.C.L.R.(2d) 324 (S.C.), affd. (1989), 40 B.C.L.R.(2d) 73 (C.A.), refd to. [para. 175].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 187].

K.L.B. et al. v. British Columbia et al. (2003), 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 188].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84 (C.A.), refd to. [para. 193].

Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233; 100 B.C.A.C. 212; 163 W.A.C. 212 (C.A.), refd to. [para. 193].

Philip v. Hironaka (1997), 210 A.R. 1 (Q.B.), refd to. [para. 193].

Yurchi et al. v. Johnston (2006), 394 A.R. 158 (Q.B.), refd to. [para. 194].

Aynsley v. Toronto General Hospital, [1967] 1 O.R. 425 (H.C.), affd. [1972] S.C.R. 435, refd to. [para. 194].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 194].

Bruce (County) v. McIntyre, [1954] 2 D.L.R. 799 (Ont. C.A.), affd. [1955] S.C.R. 251, refd to. [para. 194].

Chamberland v. Fleming (1984), 54 A.R. 291; 12 D.L.R.(4th) 688 (Q.B.), refd to. [para. 194].

Crothers v. Northern Taxi Ltd. (1957), 10 D.L.R.(2d) 87 (Man. C.A.), refd to. [para. 194].

Clyke v. Blenkhorn (1958), 13 D.L.R.(2d) 293 (N.S.S.C.), refd to. [para. 194].

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161; 145 D.L.R.(4th) 708 (C.A.), refd to. [para. 202].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), pp. 273, 274 [para. 194].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), p. 399 [para. 173].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 319 [para. 173].

Counsel:

S. Robertson and C. Plante, for the plaintiffs, Holizki and McDonough;

T. Turple and S. Flannigan, for the plaintiffs, Brown and Comstock;

B. Devlin, Q.C., for the plaintiff, Mossfeldt;

B. Popovic, for the plaintiff, Vandenbrink;

P. Ridout, for the plaintiff, McCabe;

B. Churchill-Smith, Q.C., for the defendants, Fisher and Mossfeldt;

K. Haluschak and J. Yeo, for the defendants, McCabe and City Wide Towing.

This action was heard between September 15 and October 9, 2008, by Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on November 21, 2008.