Houle and Houle v. Calgary (City) and Canada Safeway Ltd., (1983) 44 A.R. 271 (QB)

• Judge: Medhurst, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 21, 1983
• Citations: (1983), 44 A.R. 271 (QB)

Houle v. Calgary (1983), 44 A.R. 271 (QB)

MLB headnote and full text

Houle and Houle v. City of Calgary and Canada Safeway Limited (defendants) and Houle and City of Calgary (third parties)

(No. 147782)

Indexed As: Houle and Houle v. Calgary (City) and Canada Safeway Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Medhurst, J.

April 21, 1983.

Summary:

The City of Calgary in 1955 built an electrical power transformer substation on the parking lot of a Canada Safeway Store. The substation was surrounded by a wooden picket fence 10.5 feet high over which children could easily climb out of curiosity or to retrieve playthings and other objects. In 1979, when the store was unused by Canada Safeway, the plaintiff eight year old boy climbed the fence with the assistance of his ten year old brother, touched a live wire and was severely burned, losing an arm. He brought an action against the City of Calgary and Canada Safeway for damages. The City added the boy's mother as third party.

The Alberta Court of Queen's Bench allowed the action against the City of Calgary, but dismissed the action against Canada Safeway. Neither the boy nor his mother was found to be contributorily negligent.

Damage Awards - Topic 33

Personal injuries and death - Arm injuries - Loss of arm from electrical burns - Other burns to back, buttock and anus - With prosthesis 95% loss of arm function - 50-60% total disability - Eight year old boy - The Alberta Court of Queen's Bench awarded $205,753.00 general damages for personal injuries, including $40,000.00 for non-pecuniary loss, $96,353.00 for loss of prospective earnings and $69,400.00 for cost of future care and other expenses - See paragraphs 45 to 75.

Damages - Topic 1310

Exemplary or punitive damages - Negligence - An eight year old boy was severely injured by electricity after climbing into fenced electrical power transformer substation owned by the City of Calgary - The Alberta Court of Queen's Bench held the City negligent and liable for damages, but refused to award exemplary or punitive damages, where the City's conduct could not be characterized as wanton, reckless or outrageous - See paragraphs 76 to 77.

Damages - Topic 1502

General damages - General principles - Purpose or object of general damages - The Alberta Court of Queen's Bench held that the purpose of general damages for personal injuries is to provide solace to the victim in the sense of making his life more endurable - See paragraphs 71 to 75.

Damages - Topic 1554

General damages for personal injuries - Calculation and method of assessment - General principles - The Alberta Court of Queen's Bench assessed general damages for personal injuries under separate heads, including loss of prospective earnings, cost of future care and other expenses and nonpecuniary loss - See paragraphs 49 to 52.

Damages - Topic 1717

Deduction for payments or assistance by third parties - Voluntary - Voluntary social agencies - A boy lost an arm - He could expect the cost of future care, including prosthetics, to be covered by government and voluntary social agencies - The Alberta Court of Queen's Bench held that the prospect of such assistance did not disqualify the boy from an award of damages to cover the future care - See paragraph 66.

Damages - Topic 1770

Deductions for payments or assistance by third parties - By statute or government - Hospital and medical care - A boy lost an arm - He could expect the cost of future care, including prosthetics, to be covered by government and voluntary social agencies - The Alberta Court of Queen's Bench held that the prospect of such assistance did not disqualify the boy from an award of damages to cover the future care - See paragraph 66.

Torts - Topic 3551

Occupier's liability for dangerous premises - Occupier - Defined - A boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of Canada Safeway store - The Alberta Court of Queen's Bench held that for the purposes of determining liability the City was not an occupier of the substation and liability should be determined according to the ordinary principles of negligence - The court found the City negligent and liable for the boy's damages - See paragraphs 10 to 16.

Torts - Topic 4509

Dangerous activities - General principles - Standard of care - General - A boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of Canada Safeway store - The Alberta Court of Queen's Bench held that for the purposes of determining liability the City was not an occupier of the substation and liability should be determined according to the ordinary principles of negligence - The court found the City negligent and liable for the boy's damages - See paragraphs 10 to 16.

Torts - Topic 4510

Dangerous activities - General principles - Standard of care - Effect of safety regulations - The Alberta Court of Queen's Bench held that the provision of statutory regulations with the regard to the installation of electrical facilities did not necessarily preclude the application of any higher or other duty founded in the negligence rules of the common law - See paragraph 22.

Torts - Topic 4532

Dangerous activities - Electricity - Power transmission lines - General - A boy was injured by electricity after climbing into a fenced electrical power transformer substation built by the City of Calgary on the parking lot of Canada Safeway store - The fence was 10.5 feet high, but was easily climbable by children out of curiosity or to retrieve playthings or other objects - The Alberta Court of Queen's Bench held that the City was negligent and liable for the boy's damages - The court held that, because entry of the substation by children was easy and foreseeable, the substation was unsafe - See paragraphs 10 to 33.

Torts - Topic 6612

Defences - Contributory negligence - Children - An eight year old boy with the assistance of his ten year old brother climbed over a 10.5 foot high fence around an electrical power transformer substation and was injured by electricity - There were danger signs on the fence - The Alberta Court of Queen's Bench held that the boy was not contributorily negligent, because the substation was a trap for children and the boy acted in a way children could be expected to behave - See paragraphs 39 to 40.

Torts - Topic 6618

Defences - Contributory negligence - Failure of parents to control children - An eight year old boy with the assistance of his ten year old brother climbed over a 10.5 foot high fence around an electrical power transformer substation and was injured by electricity - There were danger signs on the fence - The boy's mother was not aware that the fence enclosed a transformer substation - The Alberta Court of Queen's Bench held that the mother was not negligent in failing to warn her son to stay away from it - See paragraphs 41 to 44.

Cases Noticed:

Jones v. City of Calgary et al. (1969), 67 W.W.R.(N.S.) 589, appld. [paras. 11, 37].

Citizens Light and Power Co. v. Lepitre (1898), 29 S.C.R. 1, consd. [para. 12].

Lengyel et al. v. Manitoba Power Commission (1957-58), 23 W.W.R.(N.S.) 497, consd. [para. 13].

Nixon and Nixon v. Manitoba Power Commission (1959), 29 W.W.R.(N.S.) 241, consd. [para. 14].

Walker et al. v. Sheffield Bronze Power Company Limited, 2 C.C.L.T. 97, consd. [para. 15].

Wade v. Canadian National Railway Company (1977), 17 N.R. 378; 22 N.S.R.(2d) 540; 31 A.P.R. 540; 3 C.C.L.T. 173, consd. [para. 7].

Varkonyi v. Canadian Pacific Railway Company Ltd. et al. (1980), 26 A.R. 422, consd. [para. 17].

Kalogeropoulos v. Cote, [1976] 1 S.C.R. 595; 3 N.R. 341, consd. [para. 18].

Amos v. New Brunswick Electric Power Commission, [1977] 1 S.C.R. 500; 8 N.R. 537; 13 N.B.R.(2d) 307; 13 A.P.R. 307, consd. [para. 19].

Moule v. New Brunswick Electric Power Commission, 24 D.L.R.(2d) 305, consd. [para. 20].

Knudslien v. Larson (1965), 52 W.W.R.(N.S.) 577, consd. [para. 22].

McEllistrum v. Etcles, [1956] S.C.R. 787, appld. [para. 39].

Teno v. Arnold, [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, appld. [para. 49].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452, appld. [para. 49].

Thorton v. Board of School Trustees of School District No. 57, [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, appld. [para. 49].

Conklin v. Smith (1970), 88 D.L.R.(3d) 317 (S.C.C.), consd. [para. 61].

Schultz v. Leeside Development Ltd., [1978] 5 W.W.R. 620 (B.C.C.A.), consd. [para. 61].

Can-Alta Carriers Ltd. v. Ford Motor Credit Co. of Canada Ltd. (1975), 49 D.L.R.(3d) 319, appld. [para. 76].

Blacquere v. Can. Motor Sales (1975), 10 Nfld. & P.E.I.R. 178; 17 A.P.R. 178, appld. [para. 76].

Statutes Noticed:

Occupier's Liability Act, R.S.A. 1980, c. O-3, sect. 13(1) [para. 8].

Counsel:

H.W.B. HEumann and J.A. Sutherland, for the plaintiff Sean Willam Houle;

W.W. Geselbracht, for the plaintiff Helga Houle also known as Helga Thivierge;

A.A. Abougoush and I.M. Shacter, for the defendant The City of Calgary;

A.D. MacLeod and A.J. McConnell, for the defendant Canada Safeway Limited.

This case was heard at Calgary, Alberta, before MEDHURST, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on April 21, 1983: