Millett v. McDonald's Restaurants of Canada Ltd., (1984) 29 Man.R.(2d) 83 (QB)

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 30, 1984
• Jurisdiction: Manitoba
• Citations: (1984), 29 Man.R.(2d) 83 (QB)

Millett v. McDonald's (1984), 29 Man.R.(2d) 83 (QB)

MLB headnote and full text

Millett v. McDonald's Restaurants of Canada Limited

(Suit No. 1813/81)

Indexed As: Millett v. McDonald's Restaurants of Canada Ltd.

Manitoba Court of Queen's Bench

Wilson, J.

July 30, 1984.

Summary:

The plaintiff was a victim of an outbreak of polio in 1953. As a result the plaintiff permanently lost the use of his right leg and had a weakened left arm. The plaintiff was able to walk with the use of a leg brace and cane. He had a very successful insurance career. One day while entering the defendant restaurant, the plaintiff was struck in the right shoulder area and knocked to the floor by a door which was flung open without warning by a restaurant employee. Allegedly as a result of being hit by the door the plaintiff's condition degenerated such that he became totally disabled. The plaintiff brought an action against the restaurant for damages. Liability was not in issue.

The Manitoba Court of Queen's Bench assessed damages accordingly.

Damage Awards - Topic 33

Arm injuries - Loss of use of arm - The plaintiff, who wore a leg brace, used a cane and had a weakened left arm because of polio, was injured when struck in the shoulder area by a door at a restaurant - As a result the plaintiff's condition progressively worsened and he lost the use of his right upper arm - The plaintiff was therefore unable to raise himself out of a chair - He could walk only short distances with the use of two canes; otherwise he required a wheelchair or lift for mobility - The Manitoba Court of Queen's Bench awarded $125,000.00 general damages - See paragraphs 56, 57, 98, 99.

Damage Awards - Topic 580

Torts - Torts affecting third persons - General damages for personal care of injured person - A plaintiff who became virtually completely disabled after an accident claimed damages from the defendant for, inter alia, time and effort expended on the plaintiff's behalf by his wife - The Manitoba Court of Queen's Bench awarded $12,000.00 for the wife's services - See paragraphs 84 to 87.

Damages - Topic 596

Limits of compensatory damages - Predisposition to damage - Personal injury - Victim's physical injury - The Manitoba Court of Queen's Bench reviewed the principle that a tortfeasor takes his victim as he finds him, in a case where a partially disabled former polio victim was injured, causing his condition to deteriorate - See paragraphs 14 to 22.

Damages - Topic 1400

Special damages - General - In assessing special damages in a plaintiff's suit for damages for personal injury, the Manitoba Court of Queen's Bench discussed several types of expenses that it would allow the plaintiff to recover - See paragraphs 57 to 97.

Damages - Topic 1440

Special damages - Medical and hospital - In assessing special damages in a plaintiff's suit for damages for personal injury, the Manitoba Court of Queen's Bench disallowed a plaintiff's claim for the costs of seeking medical advice from several doctors in various parts of Canada and the United States - See paragraph 60.

Cases Noticed:

Dulieu v. White and Sons, [1901] 2 K.B. 669, refd to. [para. 14].

Bourhill v. Young, [1943] A.C. 92, refd to. [para. 14].

Cutler v. Vauxhall Motors, [1971] 1 Q.B. 418, refd to. [paras. 15, 20].

West and Son Limited v. Shepard, [1964] A.C. 326, refd to. [para. 16].

Parent v. Lapointe, [1952] S.C.R. 376, refd to. [para. 18].

Shane v. Loiselle (1961), 35 W.W.R.(N.S.) 190, refd to. [para. 19].

Peacock v. Mills (1964), 50 W.W.R.(N.S.) 626, refd to. [paras. 19, 20].

Smith v. Leech, Brain and Company, [1961] 3 All E.R. 1159, refd to. [para. 20].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008, refd to. [paras. 21, 49].

Papp v. Leclerc (1977), 77 D.L.R.(3d) 536, refd to. [para. 54].

Urzi v. Board of Education for North York (1980), 30 O.R. 30, refd to. [para. 54].

McLeod v. Palardy (1980), 4 Man.R.(2d) 218, affirmed (1981), 10 Man.R.(2d) 181; 124 D.L.R.(3d) 506, folld. [paras. 80, 85, 100].

Urbanski v. Patel (1978), Legal Medical Quarterly, vol. 2, No. 1, 54, folld. [paras. 85, 87].

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, folld. [paras. 85, 98].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, folld. [paras. 85, 98].

Vana v. Tosta (1967), 66 D.L.R.(2d) 97, folld. [para. 85].

Donnelly v. Joyce, [1974] Q.B. 454, refd to. [para. 86].

Kummen v. Alfonso, [1953] 1 D.L.R. 637, refd to. [para. 93].

Korenicky v. Arrow Leasing Ltd. (1972), 28 D.L.R.(3d) 59, refd to. [para. 93].

Holian v. United Grain Growers (1980), 11 C.C.L.T. 184, refd to. [para. 97].

Rawson v. Maher (1982), 15 Man.R.(2d) 6, refd to. [para. 97].

Guy v. Trizec Equities, [1979] 2 S.C.R. 756; 27 N.R. 301; 32 N.S.R.(2d) 345; 54 A.P.R. 345, refd to. [para. 97].

Haley v. Morris, [1981] 4 W.W.R. 488, refd to. [para. 97].

Trudeau v. Manpower Commission (1958), 24 W.W.R.(N.S.) 1, refd to. [para. 98].

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. 557; 83 D.L.R.(3d) 452, refd to. [para. 98].

Authors and Works Noticed:

Fleming, The Law of Torts (5th Ed.), pp. 188, 189 [para. 17].

Weinrib, E.J., A Step Forward in Factual Causation (1975), 38 Mod. L. Rev. 318 [para. 21].

Counsel:

E.W. Olson, Q.C., for the plaintiff;

D.H. Ringstrom, for the defendant.

This case was heard before Wilson, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on July 30, 1984: