McDonald v. Nguyen, (1991) 138 A.R. 81 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 04, 1991
• Citations: (1991), 138 A.R. 81 (QB)

McDonald v. Nguyen (1991), 138 A.R. 81 (QB)

MLB headnote and full text

Barbara McDonald and Douglas McDonald v. Van Quang Nguyen

(Action No. 8901-02567)

Indexed As: McDonald v. Nguyen

Alberta Court of Queen's Bench

Judicial District of Calgary

Lutz, J.,

December 4, 1991.

Summary:

The plaintiff brought a negligence action for damages for injuries suffered in a motor vehicle accident. The plaintiff's husband claimed damages for loss of consortium. The defendant pleaded inevitable accident.

The Alberta Court of Queen's Bench found the defendant negligent and solely at fault and assessed damages accordingly. The court rejected the defence of inevitable accident.

Damage Awards - Topic 102

Personal injury and death - Head injuries - Brain damage - A 37 year old woman suffered serious head and other bodily injuries - She was in a coma, her IQ dropped at least 10 points and she had impaired cognitive functioning - Her life expectancy was unaffected, but total re­covery from brain damage was not expected - Previously a teacher, she no longer had the intellectual capacity to teach - She was restricted to menial jobs, involving simpler tasks - She could no longer perform multiple-task functions - She changed from being an outgoing and active person, to a person who was impa­tient, irritable, had low self-esteem, impaired short and long-term memory and was disoriented - Marital relations and social activities were strained, because she became depressed, self-centered and de­pendent, totally in contrast to her pre-accident personality - The Alberta Court of Queen's Bench awarded $175,000 gen­eral damages for nonpecuniary loss - See paragraphs 57 to 195.

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - A 37 year old woman suf­fered brain damage, resulting in reduced intellectual capacity and radical personality change - The previously active, outgoing, independent woman was now irritable, depressed, self-centered and dependent on her husband - Sexual relations were mini­mal - The marriage was severely strained - There was a financial strain on the fam­ily and a lost opportunity to adopt a child - The Alberta Court of Queen's Bench awarded the husband $10,000 general damages for loss of consortium under s. 43 of the Domestic Relations Act, where he was deprived of his wife's society and comfort - The court stated that partial loss of consortium was compensable in dam­ages - See paragraphs 171 to 184.

Damages - Topic 1550

General damages - Personal injury - Lost future income - A 37 year old woman suffered brain damage - She had been a teacher for eight years, but had moved with her Minister husband before the accident and was not yet teaching again - She could never teach again and was forced to take low-paying seasonal em­ployment - Her reduced mental capac­ity made multiple-task functions difficult - The Alberta Court of Queen's Bench cal­culated lost future income on the basis that she would have returned to teaching and worked until age 62 - The court stated that the woman discharged the onus of establishing a real possibility of securing a full-time teaching position by 1990 - The court awarded $599,000 damages for lost future income, being $719,000 less 16.69% for contingencies - See para­graphs 128 to 197.

Damages - Topic 1764

Deductions for payments or assistance by third parties - By statute or government - Unemployment insurance benefits - The Alberta Court of Queen's Bench stated that unemployment insurance benefits received by an injured plaintiff were not to be deducted in calculating damages, because the benefits were like "self-funded in whole or in part disability payment plans" - See paragraphs 186 to 190.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - [See Torts - Topic 6777 ].

Torts - Topic 6777

Defences - Inevitable or fortuitous acci­dent - What constitutes - The defendant drove 30-35 kmh in a 100 kmh zone on a snowy, slippery highway - The defendant lost control, slid into the other lane and struck the plaintiff's vehicle - The defend­ant pleaded inevitable accident - The Alberta Court of Queen's Bench rejected the defence - The defendant, by his own evidence, foresaw slippery conditions and failed to take reasonable precautions before losing control - The harm that occurred was reasonably foreseeable, given the weather and topographic conditions of the highway - The court stated that if it were necessary for the defendant to slow down to a "snail's pace" or stop altogether, he should have done so - The defendant failed to discharge the onus on him to establish an explanation equally consistent with negligence as with no negligence - Sliding into the wrong lane was prima facie negligence and the mere fact of skidding was a "neutral" act - See para­graphs 1 to 53.

Cases Noticed:

Sinclair v. Maillett, [1951] 3 D.L.R. 216; 27 M.P.R. 335 (N.B.), consd. [para. 19].

United Motor Service Inc. v. Hutson, [1937] S.C.R. 294; 4 I.L.R. 91; [1937] 1 D.L.R. 737, appld. [para. 19].

Aubrey v. Harris, [1957] O.W.N. 133; 7 D.L.R.(2d) 545 (C.A.), refd to. [para. 19].

Merchant Prince, The, [1892] P. 179 (C.A.), consd. [para. 20].

Rintoul v. X-Ray & Radium Industries Ltd., [1956] S.C.R. 674, consd. [para. 20].

Blackman v. Andrews, [1971] 2 W.W.R. 744; 18 D.L.R.(3d) 484 (Sask.), consd. [para. 20].

Gauthier & Co. v. R., [1945] S.C.R. 143; [1945] 2 D.L.R. 48, reving. [1944] Ex. C.R. 17; [1944] 2 D.L.R. 273, appld. [para. 22].

Hackman v. Vecchio (1969), 4 D.L.R.(3d) 444 (B.C.C.A.), consd. [para. 32].

Borthwick v. Campa (1989), 96 A.R. 176; 67 Alta. L.R.(2d) 123 (Q.B.), dist. [para. 40].

Roy v. Roy (1984), 57 A.R. 105 (Q.B.), refd to. [para. 42].

McLuskie v. Sakai, [1987] 4 W.W.R. 609; 12 B.C.L.R.(3d) 272; 21 C.P.C.(2d) 286 (C.A.), refd to. [para. 42].

Hearn v. Rowland (1987), 17 B.C.L.R.(2d) 348 (S.C.), affd. [1989] 3 W.W.R. 78; 33 B.C.L.R.(2d) 67 (C.A.), refd to. [para. 42].

Laurie v. Raglan Building Co., [1942] 1 K.B. 152; [1941] 3 All E.R. 332 (C.A.), refd to. [para. 47].

McIntosh v. Bell, [1932] O.R. 179; [1932] 2 D.L.R. 55 (C.A.), appld. [para. 52].

Schwan, The, [1892] P. 419 (C.A.), appld. [para. 52].

Livingstone v. Raywards Coal Co. (1880), 5 App. Cas. 25 (H.L.), appld. [para. 131].

Andrews v. Grand & Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 131].

Graham v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1; 75 O.R.(2d) 622 (C.A.), refd to. [para. 132].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, appld. [para. 168].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R.(3d) 385, appld. [para. 174].

Lee v. Leeming (1985), 58 A.R. 204 (Q.B.), consd. [para. 183].

Ramsay v. Ducharme (1984), 56 A.R. 275 (Q.B.), dist. [para. 185].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, dist. [para. 186].

Henderson v. Vaillancourt, [1979] 1 W.W.R. 345; 13 A.R. 345; 94 D.L.R.(3d) 670 (C.A.), refd to. [para. 189].

Hayre v. Waltz, [1991] B.C.W.L.D. 277, refd to. [para. 189].

Bracchi v. Roberts (1990), 51 B.C.L.R.(2d) 257; 47 C.P.C.(2d) 196 (S.C.), refd to. [para. 189].

Ryan v. Hawkes, [1991] B.C.W.L.D. 1179, refd to. [para. 189].

Ligate v. Abick, [1991] O.J. No. 1138 [para. 191].

Pendergras v. McGrath (1988), 86 A.R. 291; 60 Alta. L.R.(2d) 276; 45 C.C.L.T. 186 (C.A.), consd. [para. 191].

Babington v. Bertholet, [1986] B.C.J. No. 2629, consd. [para. 191].

Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.), consd. [para. 191].

Aucoin v. Master Excavators Ltd. (1982), 36 A.R. 570 (Q.B.), dist. [para. 193].

McNutt v. Dill (1989), 91 N.S.R.(2d) 63; 233 A.P.R. 63 (T.D.), dist. [para. 193].

Kupka v. Staden (1986), 73 A.R. 244 (Q.B.), dist. [para. 193].

Wenden v. Trikha (1991), 116 A.R. 81; 8 C.C.L.T.(2d) 138 (Q.B.), amended 118 A.R. 319 (Q.B.), dist. [para. 193].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 43(1) [para. 171].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 76(1), sect. 79(1)(a), sect. 179 [para. 18].

Highway Traffic Act, R.S.O 1937, c. 288, sect. 39(7) [para. 24].

Judgment Interest Act, S.A. 1984, c. J-0.5, generally [para. 54].

Authors and Works Noticed:

Canada, Statistics Canada, Life Table, Canada and the Provinces 1985-87, generally [para. 165].

Cooper-Stephenson, K., and Saunders, I., Personal Injury Damages in Canada (1981), p. 151 [para. 131].

Linden, Canadian Tort Law (4th Ed. 1988), generally [para. 19].

Counsel:

C.W. Ford and T.P. Chick, for the plain­tiffs;

B.E. Leroy and M.F. Naber-Sykes, for the defendant.

This case was heard before Lutz, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on De­cember 4, 1991.