Joyce v. Canadian Pacific Hotels Corp. et al., (1994) 161 A.R. 53 (QB)

• Judge: Fruman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 22, 1994
• Citations: (1994), 161 A.R. 53 (QB)

Joyce v. Cdn. Pacific Hotels Corp. (1994), 161 A.R. 53 (QB)

MLB headnote and full text

Gilbert F. Joyce and Grace F. Joyce (plaintiffs) v. Canadian Pacific Hotels Corporation and Kananaskis Alpine Resorts Inc. (defendants)

(Action No. 9101-13616)

Indexed As: Joyce v. Canadian Pacific Hotels Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Fruman, J.

November 22, 1994.

Summary:

The plaintiff husband slipped in a hotel bathtub and injured himself. He sued the defendant owner and manager of the hotel for damages, claiming under the Occupiers' Liability Act. The plaintiff wife claimed damages for loss of consortium. Both plain­tiffs claimed damages for loss of vacation expenses and loss of enjoyment of vacation.

The Alberta Court of Queen's Bench allowed the action in part. The defendants were liable for failing to ensure the premises were reasonably safe for the plaintiff visi­tors. The court assessed special and general damages and dismissed the claim for loss of consortium.

Damage Awards - Topic 28

Injury and death - Arm and hand injuries - Fracture of humerus - The 49 year old male plaintiff fractured his right humerus while vacationing - The least invasive treatment was successful (sling) - Rib tenderness and severe bruising of upper right arm - Degenerative changes in the AC joint, caused by the accident - Severe initial pain which decreased gradually - Fracture healed well - Returned to work on reduced-hours basis in three weeks - Most activities resumed in two to three months - Uses anti-inflammatory drugs occasionally - Minimal physical impair­ment, but no functional impairment - The Alberta Court of Queen's Bench assessed $14,000 general damages for nonpecuniary loss, including amounts for a slight chance of future surgery and for the disruption of the plaintiff's vacation - See paragraphs 43 to 59.

Damages - Topic 1261

Losses by third parties - Loss of consor­tium - Loss of society, companionship and comfort - The 49 year old plaintiff frac­tured his right humerus - His wife claimed $4,000 damages for loss of consortium (Domestic Relations Act, s. 43(1)) - The Alberta Court of Queen's Bench dismissed the claim - The court stated that "a loss of consortium is a loss of comfort and sup­port rather than a loss of the services of a spouse" - The only evidence of loss of consortium was the husband's and wife's testimony that they did not have marital relations for two months following the injury - There was neither evidence of their marital relationship before the injury nor of its impact on their relationship and the society and comfort the husband pro­vided to his wife - See paragraphs 60 to 63.

Damages - Topic 1539

General damages - Elements of - Disrup­tion of vacation - [See Damage Awards - Topic 28].

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - [See Damage Awards - Topic 28 ].

Torts - Topic 3709

Occupiers' liability for dangerous premises - Invitees - Liability of particular occu­piers - Hotels - The plaintiff slipped in a hotel bathtub - The two year old bathtub had a manufactured nonskid surface - The Alberta Court of Queen's Bench held that the hotel was liable in damages under s. 5 of the Occupiers' Liability Act for failing to take reasonable steps to ensure the premises were reasonably safe for visitors - A bathmat with suction cups was not required to discharge the hotel's duty of care - However, the abrasive nonskid surface was not designed to last indefinitely, accordingly, proper mainte­nance, care and repair were required - The defendants failed to establish reasonable maintenance procedures or reasonable inspection procedures - The plaintiff was not contributorily negligent in his use of the bathtub - See paragraphs 4 to 42.

Cases Noticed:

Preston v. Canadian Legion of the British Empire Service League, Kingsway Branch No. 175 and Edmonton (City) (1981), 29 A.R. 532; 123 D.L.R.(3d) 645 (C.A.), refd to. [para. 4].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 7].

Jivraj et al. v. Fischer (1992), 124 A.R. 81 (Q.B.), refd to. [para. 52].

Tibbits v. Malloy (1989), 94 A.R. 176; 65 Alta. L.R.(2d) 90 (Q.B.), refd to. [para. 52].

Soroka and Soroka v. Uytterhaegen and Uytterhaegen (1986), 48 Sask.R. 180 (Q.B.), refd to. [para. 54].

Lysack v. Burrard Motor Inn Ltd., [1989] B.C.J. No. 1910, refd to. [para. 54].

Pavlina (Guardian ad litem of) v. Kemila, [1990] B.C.J. No. 2837, refd to. [para. 54].

Goglin v. Lightheart, [1992] B.C.J. No. 2416, refd to. [para. 54].

Rahal v. Bonk, [1993] B.C.J. No. 2350, refd to. [para. 54].

Sandwill Industries Ltd. v. Knotson, [1986] B.C.J. No. 2753, refd to. [para. 54].

O'Connor v. Morgan, [1987] B.C.J. No. 26, refd to. [para. 54].

O'Hara et al. v. Belanger (1989), 98 A.R. 86 (Q.B.), refd to. [para. 54].

Taylor v. Wispinski, [1993] B.C.J. No. 1520, refd to. [para. 54].

Ferguson v. Varzari, [1994] A.J. No. 544, refd to. [para. 54].

Lang v. Ballash (1989), 101 A.R. 234; 72 Alta. L.R.(2d) 306 (C.A.), refd to. [para. 61].

Mackie v. Wolfe (1994), 153 A.R. 81 (Q.B.), refd to. [para. 63].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 43(1) [para. 60].

Judgment Interest Act, S.A. 1984, c. J-0.5, generally [para. 64].

Occupiers' Liability Act, R.S.A. 1980, c. O-3, sect. 5 [para. 5].

Authors and Works Noticed:

Personal Injury Damage Assessments: Alberta, generally [para. 54].

Counsel:

W.E. McNally, for the plaintiffs;

T.P. Chick, for the defendants.

This action was heard before Fruman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 22, 1994.