Nice v. Calgary (City) et al., (1997) 207 A.R. 255 (QB)

• Judge: Kenny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 22, 1997
• Citations: (1997), 207 A.R. 255 (QB)

Nice v. Calgary (1997), 207 A.R. 255 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. NO.012

Margaret Nice (plaintiff) v. John Doe and The City of Calgary (defendants)

(Action No. 9201-18737)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Kenny, J.

October 22, 1997.

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 dis­missed the plaintiff's claim where she failed to prove 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.

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 Alberta Court of Queen's Bench dismissed the plaintiff's claim where she failed to prove the defendants were negligent - Particularly, the driver of the bus could not be identified and therefore, there was no evidence why the bus suddenly stopped - Moreover, there were no visible signs to indicate to the driver that it was neces­sary for the plaintiff to take her seat before the bus started and barring obvious con­ditions, there was no obligation on the driver to wait until all the passengers had taken their seat before starting the bus - See para­graphs 26 to 52.

Carriers - Topic 3104

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

Carriers - Topic 3170

Liability to passengers - Defences - Stat­utory limitation - The 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 certain injuries and seeking compensation - The City argued that the plaintiff's action should be struck for failure to comply with the six month notice period set out in the Municipal Government Act, s. 402(1) - The Alberta Court of Queen's Bench agreed that the action was outside the notice period, however, stated that it was not statute barred because the plaintiff had a "reasonable excuse" for the delay and because the City was not prejudiced by the delay - See paragraphs 15 to 25.

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 Alberta Court of Queen's Bench dismissed the plaintiff's claim where she failed to prove the defendants were negligent - However, the court provisionally assessed $20,000 damages for the shoulder injury - See paragraphs 54 to 55.

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 Alberta Court of Queen's Bench dismissed the plaintiff's claim where she failed to prove 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 - See paragraphs 56 to 60.

Limitation of Actions - Topic 8021

Actions against municipalities - Applic­ability of limitation period - General - [See Carriers - Topic 3170 ].

Limitation of Actions - Topic 9618

Enlargement of time period - Application for - Explanation for delay - [See Car­riers - Topic 3170 ].

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - In defending an action, the City of Calgary asserted, inter alia, that it was statute barred by the six month limitation under s. 4 of the Mu­nicipal Government Act - At trial, the City sought to amend the defence because it had referred to the wrong section of the Act (s. 4) when referring to the limitation period - The proper section was s. 402(1) - The Alberta Court of Queen's Bench allowed the amendment where it was made without prejudice and where it did not take the other side by surprise - See paragraphs 15 to 19.

Practice - Topic 2117

Pleadings - Amendment of pleadings - To plead a statute - [See Practice - Topic 2103 ].

Practice - Topic 2123

Pleadings - Amendment of pleadings - Statement of defence - General - [See Practice - Topic 2103 ].

Torts - Topic 36

Negligence - Standard of care - Carriers - Bus drivers - [See Carriers - Topic 3068 ].

Cases Noticed:

Pepper v. Sisters of Charity of Northwest Territories (1966), 57 W.W.R.(N.S.) 279 (Alta. T.D.), refd to. [para. 17].

Theberge v. Salmon River Logging Co. (1956), 17 W.W.R.(N.S.) 659 (B.C.S.C.), refd to. [para. 17].

Conmac Western Industries v. Robinson et al. (1993), 139 A.R. 321; 9 Alta. L.R.(3d) 232 (Q.B.), refd to. [para. 18].

Robertson Mohawk Fuel Distributors Ltd. v. Digger Excavating (1983) Ltd. (1997), 197 A.R. 195 (Q.B.), refd to. [para. 18].

Petrone v. Marmot Concrete Services Ltd. (1996), 179 A.R. 241; 37 Alta. L.R.(3d) 222 (Q.B.), refd to. [para. 18].

Beck v. Anderson (1913), 5 W.W.R. 702 (Sask. C.A.), refd to. [para. 18].

Pachal v. Ludwig, [1921] 3 W.W.R. 551 (Sask. C.A.), refd to. [para. 18].

International Minerals & Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al., [1992] 5 W.W.R. 467; 103 Sask.R. 234 (Q.B.), refd to. [para. 18].

Lassen v. Calgary (City) (1985), 60 A.R. 111; 19 D.L.R.(4th) 137 (C.A.), refd to. [para. 23].

Day v. Toronto Transportation Com­mission, [1940] S.C.R. 433, refd to. [para. 29].

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. 43].

Winder v. Garrett (1957), 7 D.L.R.(2d) 462 (Ont. C.A.), refd to. [para. 46].

Saper v. Calgary (City), Monkman and Mary Doe (1979), 21 A.R. 577 (Q.B.), refd to. [para. 47].

Reid v. Stein (1994), 160 A.R. 208; 25 Alta. L.R.(3d) 31 (Q.B.), refd to. [para. 47].

Nygaard v. Gosling, [1988] B.C.J. No. 2026, refd to. [para. 47].

Paskov v. Kerrigan et al. (1988), 56 Man.R.(2d) 25 (Q.B.), refd to. [para. 47].

Planidin v. Dykes, [1948] B.C.J. No. 907, refd to. [para. 47].

Wang v. Horrod et al., [1997] B.C.T.C. Uned. 931 (T.D.), refd to. [para. 47].

Mauro v. Romanica and Winnipeg (City) (1987), 52 Man.R.(2d) 172 (Q.B.), refd to. [para. 48].

Broccoli v. Harris, [1991] B.C.J. No. 2725 (S.C.), refd to. [para. 48].

Tucker v. Thunder Bay (City) (1996), 17 O.T.C. 46 (Gen. Div.), refd to. [para. 48].

Welch v. Calgary (City) and Carter (1977), 10 A.R. 369 (T.D.), refd to. [para. 48].

Naicken v. Edmonton (City) (1997), 197 A.R. 331; 32 C.C.L.T.(2d) 137 (Q.B.), refd to. [para. 49].

Lalani v. Wilson, [1988] B.C.J. No. 2408, refd to. [para. 50].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 57].

Statutes Noticed:

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 402(1) [para. 15].

Authors and Works Noticed:

Sopinka, John, Lederman, Sydney N., Bryant, Alan W., The Law of Evidence in Canada (1992), generally [para. 40].

Counsel:

William E. McNally, for the plaintiff;

Lise Olsen, for the defendants.

This case was heard before Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on October 22, 1997.