Jivraj et al. v. Fischer, (1992) 124 A.R. 81 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 14, 1992
• Citations: (1992), 124 A.R. 81 (QB)

Jivraj v. Fischer (1992), 124 A.R. 81 (QB)

MLB headnote and full text

Mawji Jivraj, Nurbanu Jivraj, Abdulsultan Virjee, Shahbanoo Virjee and Shirin Esmail (plaintiffs) v. Benny Fischer (defendant)

(Action No. 8801-11213)

Indexed As: Jivraj et al. v. Fischer

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

February 14, 1992.

Summary:

The plaintiffs brought a negligence action for damages against the defendant motor vehicle driver for injuries suffered in an accident.

The Alberta Court of Queen's Bench found the defendant negligent and 90% at fault and the plaintiff driver contributorily negli­gent and 10% at fault. The court assessed dam­ages accordingly, reducing each plain­tiffs' damage award from between 15% to 75% for failure to wear their seat belts.

Damage Awards - Topic 29

Personal injuries and death - Arm and hand injuries - Wrist - An adult woman suffered a fractured wrist and elbow, plus contusions and abrasions - She had her arm in a cast from her fingers to her shoulder, then a lightweight cast for a further month - No physiotherapy after 1988 - Full recovery - Still complained of back and neck pain when working - The Alberta Court of Queen's Bench assessed $13,500 general damages for nonpecuniary loss - The court reduced the award by 10% to reflect the effect of the woman's failure to wear her seat belt - See para­graphs 108 to 129.

Damage Awards - Topic 31

Personal injuries and death - Arm and hand injuries - Elbow - [See Damage Awards - Topic 29 ].

Damage Awards - Topic 58

Personal injuries and death - Body injuries - Clavicle - A 62 year old man suffered a fractured left collarbone and various con­tusions and abrasions - Returned to work in four weeks - Had residual pain and discomfort for one year - Complete re­covery - The Alberta Court of Queen's Bench assessed $5,000 general damages for nonpecuniary loss - The court reduced damages by 75% where the man would have suffered only minor bruising had he been wearing his seat belt - See para­graphs 51 to 63.

Damage Awards - Topic 125

Personal injuries and death - Leg injuries - Ankle - A 75 year old man suffered a fractured right ankle plus multiple con­tusions and abrasions - History of heart attacks, diabetes, coronary artery disease, glaucoma and obesity - Two operations on ankle required - Injuries induced a further heart attack - Quality of life and preexisting heart and diabetes conditions worsened by the injuries - The Alberta Court of Queen's Bench assessed $22,000 general damages for nonpecuniary loss - The court reduced damages by 50% to reflect the effect of the man's failure to wear his seat belt - See paragraphs 64 to 87.

Damage Awards - Topic 150

Personal injuries and death - Multiple injuries - A 72 year old woman suffered a lacerated forehead, multiple contusions and abrasions, a sprained left shoulder and fractured ribs and knee - Upper dental plate cracked - Concussion - Multiple health problems, including arthritis, aggra­vated by the injuries - Still suffered aches and pains - Mobility and enjoyment of life diminished - The Alberta Court of Queen's Bench assessed $25,000 general damages for nonpecuniary loss - The court reduced damages by 60% for the woman's failure to wear her seat belt, where her most serious injuries (ribs and knee) could have been prevented had she worn her seat belt - See paragraphs 88 to 107.

Damage Awards - Topic 179

Personal injuries and death - Neck injuries - Soft tissue injuries - An adult woman suffered a soft tissue injury - Sore neck and back, headaches and multiple con­tusions - Degenerative changes unrelated to the accident causing the injuries - The Alberta Court of Queen's Bench found the woman to be a malingerer, whose injuries should have been resolved within one year at the latest - The court assessed $10,000 general damages for nonpecuniary loss - The court reduced damages by 15% to reflect the effect of the woman's failure to wear her seat belt - See paragraphs 130 to 161.

Damages - Topic 1413

Special damages - Loss of income of self-employed person - An adult woman suf­fered a soft tissue injury, for which she claimed loss of income from her hair­dressing business - The woman earned $3,500/year on average - The Alberta Court of Queen's Bench found the woman to be a malingerer, whose injuries should have been resolved within one year at the latest - The court limited special damages for lost income to one year ($3,500) - See paragraphs 155 to 158.

Evidence - Topic 7003

Opinion evidence - Expert evidence - Procedural prerequisites to admission - Rule 218.1(1) required a party intending to call an expert witness to serve on other parties, at least 90 days before trial, a copy of a statement by the expert stating his name and qualifications and the substance of his opinion - The plaintiffs served the statement (four medical reports), but did not give formal notice of their intention to call the doctor as an expert - The Alberta Court of Queen's Bench held that rule 218.1(1) was complied with - Formal notice of an intention to call the expert was not required as long as the statement with the required information was served 90 days before trial - See paragraphs 162 to 169.

Torts - Topic 385

Negligence - Motor vehicle - Standard of care of driver - Obstructing highway - The defendant drove a motor home pulling a car on a dolly, travelling 80 kph in the right lane of a four lane divided highway with a 110 kph speed limit - The defen­dant saw a service road he wished to take and crossed over into the left lane to get to it - The defendant had slowed consider­ably and blocked the left shoulder, left lane and part of the right lane - The plaintiff, travelling in the same direction, took evasive action but still struck the defendant - The Alberta Court of Queen's Bench found the defendant negligent and 90% at fault for executing an unsafe turn into the left lane - The plaintiff driver, whose reaction time was found to be ex­cessive, was contributorily negligent and 10% at fault for failing to be sufficiently attentive - See paragraphs 2 to 41.

Torts - Topic 395

Negligence - Motor vehicle - Standard of care of driver - Attentiveness - [See Torts - Topic 385 ].

Torts - Topic 448

Negligence - Motor vehicle - Rules of the road - Changing lanes - [See Torts - Topic 385 ].

Torts - Topic 6610

Defences - Contributory negligence - Motor vehicle accidents - [See Torts - Topic 385 ].

Torts - Topic 6630

Defences - Contributory negligence - Failure to use safety equipment - Seat belts - Five plaintiffs were injured in a motor vehicle accident - The plaintiffs' vehicle was travelling 20 kph at the time of collision - None of the plaintiffs wore their seat belts - There was no mandatory seat belt legislation at the time - The Alberta Court of Queen's Bench found each plaintiff contributorily negligent for failing to wear their seat belts - The degree of contributory negligence depended on the extent to which each plaintiff's injury was affected by the failure to wear a seat belt - The court assessed damages for each plaintiff and reduced the awards by 75%, 60%, 50%, 15% and 10% respectively - See paragraphs 42 to 49.

Cases Noticed:

Mason et al. v. Leslie (1983), 21 A.C.W.S.(2d) 157 (B.C.S.C.), refd to. [para. 40].

Fletcher Auto Towing Ltd. v. Storteboom, [1979] 1 A.C.W.S. 361 (B.C. Co. Ct.), refd to. [para. 40].

Atkinson et al. v. Smith et al., [1979] 2 A.C.W.S. 364 (Sask. Q.B.), refd to. [para. 40].

Donaher et al. v. Richard (1981), 37 N.B.R.(2d) 1; 97 A.P.R. 1 (Q.B.), refd to. [para. 40].

Ertel v. Brosteneant, [1979] 1 A.C.W.S. 120 (Ont. H.C.J.), refd to. [para. 40].

Haller v. Johnson and Dresser Industries Inc. (1978), 11 A.R. 539 (Dist. Ct.), refd to. [para. 40].

Kootnikoff v. Fowler (1979), 1 A.C.W.S.(2d) 456 (B.C. Co. Ct.), refd to. [para. 40].

Wadman v. Clark (1975), 8 Nfld. & P.E.I.R. 220; 8 A.P.R. 220 (P.E.I.S.C.), refd to. [para. 40].

Haydu v. Calgary (City) and Santo (1991), 116 A.R. 161; 81 Alta. L.R.(2d) 107 (Q.B.), refd to. [para. 47].

Jakobsson v. British Columbia (1979), 11 B.C.L.R. 85 (S.C.), refd to. [para. 48].

Ohlheiser and Ohlheiser v. Cummings, [1979] 6 W.W.R. 282; 4 Sask.R. 402 (Q.B.), refd to. [para. 48].

Rinas v. Regina (City) (1983), 26 Sask.R. 132 (Q.B.), refd to. [para. 48].

Dyson v. Jawanda et al. (1987), 4 A.C.W.S.(3d) 17 (B.C.S.C.), refd to. [para. 48].

Solbach v. Siebert and Abrahamson (1989), 101 A.R. 201 (Q.B.), refd to. [para. 49].

Blair v. Willow Shores Resort (1980) Ltd., [1987] B.C.D. Civ. 3389-27, dist. [para. 56].

Lum v. Zaganas, [1991] B.C.D. Civ. 3397-05, dist. [para. 56].

Deas et al. v. D'Entremont and Canadian General Insurance Co. (1981), 44 N.S.R.(2d) 459; 83 A.P.R. 459 (T.D.), refd to. [para. 57].

Poirier v. England (1981), 35 N.B.R.(2d) 292; 88 A.P.R. 292 (Q.B.), refd to. [para. 58].

Rossignol v. Desjardins (1981), 35 N.B.R.(2d) 87; 88 A.P.R. 87 (Q.B.), refd to. [para. 58].

Monroe v. Faircrest, [1987] B.C.D. Civ. 3389-38 (C.A.), dist. [para. 71].

Gautreau v. Hansberg, [1987] B.C.D. Civ. 3389-42 (S.C.), dist. [para. 71].

Fancy v. Burgoyne (1982), 52 N.S.R.(2d) 1; 106 A.P.R. 1 (T.D.), refd to. [para. 71].

Thomson v. McLean (1983), 57 N.S.R.(2d) 436; 120 A.P.R. 436 (T.D.), refd to. [para. 71].

Raymond v. Goodridge (1989), 92 A.R. 361 (C.A.), dist. [para. 79].

Brautigam v. Orderly Investments Ltd. (1985), 58 A.R. 140 (Q.B.), refd to. [para. 79].

Matheson v. Dalhousie College (1983), 25 C.C.L.T. 91 (N.S.T.D.), refd to. [para. 79].

Lamboo v. Bernard (1990), 66 Man.R.(2d) 180 (Q.B.), refd to. [para. 82].

Dibblee v. Leech (1982), 38 N.B.R.(2d) 652; 100 A.P.R. 652 (Q.B.), refd to. [para. 82].

Johnston v. Sutherland, [1987] B.C.D. Civ. 3338-25, dist. [para. 97].

Colliar v. Tolksdorff, [1990] B.C.D. Civ. 3388-12, dist. [para. 97].

Lewis v. Williams (1990), 111 N.B.R.(2d) 285; 277 A.P.R. 285 (Q.B.), refd to. [para. 98].

Osburn v. Mohindra (1980), 29 N.B.R.(2d) 340; 66 A.P.R. 340 (Q.B.), dist. [para. 114].

Vietch v. Lachner, [1982] B.C.D. Civ. 3373-01, dist. [para. 114].

Milne v. Gagne (1983), 45 A.R. 170 (Q.B.), dist. [para. 114].

MacLeod v. Sobey's Stores Ltd. et al. (1986), 76 N.S.R.(2d) 170; 189 A.P.R. 170 (T.D.), refd to. [para. 119].

Kay v. Sokol (1989), 95 A.R. 351 (Q.B.), dist. [para. 145].

Lee et al. v. Leeming (1985), 58 A.R. 204 (Q.B.), dist. [para. 145].

Hartley v. Giokas and Avery (1989), 92 A.R. 212; 64 Alta. L.R.(2d) 240 (Q.B.), dist. [para. 145].

Grivicic v. Doyle (1991), 121 A.R. 137 (Q.B.), refd to. [para. 150].

Svoboda v. Albers (1989), 94 A.R. 232 (Q.B.), refd to. [para. 150].

Dezwart v. Misericordia Hospital et al. (1988), 96 A.R. 183; 64 Alta. L.R.(2d) 72 (Q.B.), dist. [para. 167].

Fistravec v. Golofinopoulos (1985), 50 C.P.C. 25 (B.C.C.A.), refd to. [para. 167].

Chalinor v. Brown (1989), 98 A.R. 225; 69 Alta. L.R.(2d) 88 (C.A.), refd to. [para. 168].

Wilson v. Walton (No. 1) (1987), 79 A.R. 97; 51 Alta. L.R.(2d) 308 (Q.B.), refd to. [para. 169].

Alberta Motor Association Co. v. Lenza (1990), 74 Alta. L.R.(2d) 218 (C.A.), refd to. [para. 169].

Commonwealth Construction Co. Ltd. v. Syncrude Canada Ltd. (1985), 64 A.R. 132; 40 Alta. L.R.(2d) 89 (Q.B.), refd to. [para. 169].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1980, c. C-23, generally [para. 39].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 66(1), sect. 66(2), sect. 69, sect. 73, sect. 74(1), sect. 75(1), sect. 76(2), sect. 77, sect. 79(1)(c), sect. 79(2), sect. 79(3)(a), sect. 79(4), sect. 88, sect. 92(1), sect. 92(4) [para. 6].

Judgment Interest Act, R.S.A. 1980, c. J-0.5.

Rules of Court (Alta.), rule 218.1 [para. 162].

Authors and Works Noticed:

Goldsmith, Damages for Personal Injury and Death, Consolidated Table of Dam­ages (1989 Looseleaf), generally [para. 58].

Counsel:

R.J. Glenn, for the plaintiffs;

V.A. Macdonald, for the defendant.

This action was heard before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on February 14, 1992.