MacDonald v. Alderson and Manitoba, (1981) 8 Man.R.(2d) 202 (QB)

• Judge: Hewak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 09, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 8 Man.R.(2d) 202 (QB)

MacDonald v. Alderson (1981), 8 Man.R.(2d) 202 (QB)

MLB headnote and full text

MacDonald v. Alderson and Manitoba, Province of

Indexed As: MacDonald v. Alderson and Manitoba

Manitoba Court of Queen's Bench

Hewak, J.

April 9, 1981.

Summary:

This case involved an action for damages arising out of a motor vehicle accident. The plaintiff motorcyclist was struck by the defendant driver, who failed to stop at a stop sign. The motorcyclist was driving in excess of the speed limit and had been drinking. The motorcyclist suffered permanent brain damage with almost total blindness in his right eye and impaired vision in his left eye. He had a loss of his senses of smell and taste, his sense of touch in his left hand was impaired and he suffered loss of strength in his left arm. The motorcyclist experienced spasticity and weakness in his legs. He was only able to function at a grade 5 or 6 level and experienced a drastic personality change.

The Manitoba Court of Queen's Bench held the motorcyclist to be 50% at fault. The court assessed general damages for non-pecuniary loss at $150,000.00. The court assessed general damages for pecuniary loss (including costs of future care) at $1,698,346.68.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence - Failure to use safety equipment - The plaintiff, a motorcyclist, sustained head injuries resulting in brain damage in a motor vehicle accident - The plaintiff was not wearing a helmet - The Manitoba Court of Queen's Bench held that bearing in mind the type and location of the plaintiff's injury, it was unable to conclude on the facts that a helmet would have prevented or minimized the injury - See paragraphs 67 to 76.

Torts - Topic 415

Negligence - Motor vehicles - Rules of the road - Right-of-way - General - The plaintiff motorcyclist was struck by a motor vehicle, which failed to stop at a stop sign - The Manitoba Court of Queen's Bench stated that a statutory right-of-way is not absolute but is only one factor to be considered in determining liability - The court held the plaintiff 50% at fault - Had the plaintiff kept a proper lookout and his speed been lower and had he not been impaired by alcohol, he would have been able to react to the circumstances - See paragraphs 46 to 57.

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - The Manitoba Court of Queen's Bench stated that excessive speed in itself does not necessarily constitute a departure from a reasonable standard of care amounting to negligence - Other factors such as time of day, road conditions, amount of traffic, visibility, vehicle conditions, and the condition of the driver must be taken into account - See paragraphs 41 to 45.

Damage Awards - Topic 102

Personal injuries - Head injuries - Brain damage - 19 year old male high school graduate active in sports and social activities - Permanent brain damage with blindness in right eye, and impaired vision in left - Loss of senses of smell and taste - Impaired sense of touch in left hand and loss of strength in left arm - Spasticity and weakness in legs - Functional at grade 5 or 6 level - Post-traumatic epileptic seizures - Personality change - The Manitoba Court of Queen's Bench assessed $150,000.00 general damages for non-pecuniary loss - See paragraphs 77 to 90.

Damages - Topic 1546

General damages - Personal injury - Discount or capitalization rate and present value of future payments - The Manitoba Court of Queen's Bench applied a discount rate of 3% to nonwage related expenses and a discount rate of 1.5% for wage related expenses in the calculation of general damages for personal injuries - See paragraphs 153 to 167.

Damages - Topic 1548

General damages - Personal injury - Management of fund fee - The Manitoba Court of Queen's Bench awarded $50,000.00 management fee - The court stated that the fee should not be based on a percentage basis where the award was calculated on riskless or minimal risk investments - See paragraphs 187 to 193.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages or earnings - The Manitoba Court of Queen's Bench generally discussed and referred to factors to be considered in assessing general damages for prospective loss of earnings and loss of employer benefits - See paragraphs 168 to 174.

Damages - Topic 1553

General damages - Personal injury - Loss of pension contributions - The Manitoba Court of Queen's Bench awarded the plaintiff $5,400.00 for loss of employer contributions to the Canada Pension Plan - See paragraph 178.

Damages - Topic 1560

General damages - Personal injury - Factors tending to reduce award - The Manitoba Court of Queen's Bench reduced an award for loss of prospective earnings by 74% to avoid duplication of damages already recovered for cost of future care - See paragraphs 179 to 185.

Damages - Topic 1567

General damages - Personal injury - Future care and treatment - The Manitoba Court of Queen's Bench generally discussed and referred to the method of calculating general damages for cost of future care and treatment - See paragraphs 94 to 167.

Cases Noticed:

McConkey v. Thorn (1972), 21 D.L.R.(3d) 673, consd. [para. 44].

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450, consd. [para. 46].

Swartz Bros. Ltd. et al. v. Wills, [1924] S.C.R. 628; [1935] 3 D.L.R. 277, consd. [para. 56].

Hildebrand v. Szalai (1979), 1 Man.R.(2d) 438, consd. [para. 69].

H. West & Son Ltd. et al. v. Shephard, [1964] A.C. 326, consd. [para. 83].

Andrews et al. v. Grand & Toy Alberta Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452, refd to. [para. 84].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, refd to. [para. 84].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, refd to. [para. 84].

Lewis v. Todd et al. (1980), 14 C.C.L.T. 294; 34 N.R. 1, consd. [para. 85].

Malat et al. v. Bjornson et al. (No. 2), [1979] 9 C.C.L.T. 162, refd to. [para. 151].

McLeod v. Palardy (1980), 4 Man.R.(2d) 218, refd to. [para. 186].

Statutes Noticed:

Highway Traffic Act, C.C.S.M., c. H-60, sect. 2(66), sect. 121 [para. 32]; sect. 127(1) [paras. 30, 31].

Highway Traffic Act, R.S.O. 1970, c. 202, sect. 64 [para. 44].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 236 [para. 61].

Counsel:

I.R.A. MacMillan and P.C.M. Freeman, for the plaintiff;

W.G. McFetridge and R.S. Perozzo, for the defendants.

This case was heard before HEWAK, J., of the Manitoba Court of Queen's Bench.

The judgment of HEWAK, J., was delivered on April 9, 1981: