Nice v. Calgary (City) et al., (2000) 266 A.R. 118 (CA)

• Judge: Hetherington, Conrad and Sulatycky, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 11, 2000
• Citations: (2000), 266 A.R. 118 (CA);2000 ABCA 221

Nice v. Calgary (2000), 266 A.R. 118 (CA);

    228 W.A.C. 118

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AU.041

Margaret Nice (appellant/plaintiff) v. John Doe and The City of Calgary (respondent/defendant)

(97-17431; 2000 ABCA 221)

Indexed As: Nice v. Calgary (City) et al.

Alberta Court of Appeal

Hetherington, Conrad and Sulatycky, JJ.A.

August 2, 2000.

Summary:

The 55 year old female plaintiff stumbled and fell on a City of Calgary transit bus when the bus suddenly stopped while she was standing. Thereafter, she sued the City of Calgary et al. for damages, alleging that she suffered a shoulder injury and depression from the accident.

The Alberta Court of Queen's Bench, in a decision reported 207 A.R. 255, dis­missed the plaintiff's claim where she failed to prove that the defendants were negligent. The court provisionally assessed the plain­tiff's damages at $20,000 for her shoulder injury and $10,000 for her depression. The plaintiff appealed.

The Alberta Court of Appeal allowed the appeal and entered judgment in favour of the plaintiff for one-half of the assessed dam­ages.

Carriers - Topic 3068

Liability to passengers - Standard of care -Of driver of bus - The 55 year old female plaintiff stumbled and fell on a City of Calgary transit bus when the bus suddenly stopped while she was standing - There­after, she sued the City of Calgary et al. for damages, alleging that she suffered a shoulder injury and depression - The trial judge dismissed the plaintiff's claim where she failed to prove that the defen­dants were negligent - The Alberta Court of Appeal allowed the plaintiff's appeal - The sudden stopping of the bus constituted prima facie negligence - Consequently, the defendants had to establish why the bus stopped and that it was not negligent - The defendants, who could not locate the driver of the bus on the day in question, failed to do this and were therefore liable - See paragraphs 1 to 56.

Carriers - Topic 3104

Liability to passengers - Negligence - Boarding or departure - [See Carriers - Topic 3068 ].

Damage Awards - Topic 57

Injury and death - Body injuries - Shoul­der (incl. rotator cuff) - The 55 year old female plaintiff stumbled and fell on a City of Calgary transit bus when the bus sud­denly stopped while she was standing - Thereafter, she sued the City of Calgary et al. for damages, alleging that she suffered, inter alia, a shoulder injury - The trial judge dismissed the plaintiff's claim - However, the court provisionally assessed $20,000 damages for the shoulder injury - The Alberta Court of Appeal allowed the appeal but reduced damages by 50% where the plaintiff was contributorily negligent in failing to hold onto the supports as she was travelling down the aisle - See para­graphs 57 to 59.

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - The 55 year old female plain­tiff stumbled and fell on a City of Calgary transit bus when the bus suddenly stopped while she was standing - There­after, she sued the City of Calgary et al. for dam­ages, alleging that she suffered, inter alia, depression as a result of the accident - The trial judge dismissed the plaintiff's claim where she failed to prove that the defend­ants were negligent - How­ever, the court provisionally assessed $10,000 damages for the depression - The court substan­tially reduced this amount from the usual awards in these types of injuries where there was a very real prob­ability that the depression would have occurred at some point in the future whether or not the plaintiff suffered the shoulder injury - The Alberta Court of Appeal allowed the plai­ntiff's appeal but reduced the damage award by 50% where the plaintiff was contributorily negligent - See paragraphs 57 to 59.

Torts - Topic 36

Negligence - Standard of care - Particular persons and relationships - Carriers - Bus drivers - [See Carriers - Topic 3068 ].

Cases Noticed:

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 12].

Day v. Toronto Transportation Commis­sion, [1940] S.C.R. 433, refd to. [para. 14].

Exshaw v. British Columbia Transit Auth­ority et al., [1998] 1 W.W.R. 292; 95 B.C.A.C. 81; 154 W.A.C. 81 (C.A.), refd to. [para. 25].

Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.), refd to. [para. 25].

Winder v. Garrett and Jay (1957), 7 D.L.R.(2d) 462 (Ont. C.A.), refd to. [para. 25].

Fromant v. Edmonton (City) and MacDonald (1953), 9 W.W.R.(N.S.) 114 (Alta. S.C.), refd to. [para. 25].

National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481; 3 D.L.R.(3d) 55, refd to. [para. 35].

Lalani v. Wilson, [1988] B.C.J. No. 2408 (S.C.), refd to. [para. 36].

McGhee v. National Coal Board, [1973] 1 W.L.R. 1 (H.L.), refd to. [para. 41].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 45].

Fontaine v. British Columbia (Official Administrator) - see Fontaine v. Loewen Estate.

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1980, c. C-23, sect. 1(1), sect. 2(1), sect. 4 [para. 57].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 180(1) [para. 32].

Counsel:

W.E. McNally, for the appellant;

L. Olsen, for the respondent.

This appeal was heard on May 11, 2000, before Hetherington, Conrad and Sulatycky, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the Court on August 2, 2000.