Park v. Zealandia B.P.O. Elks Inc. et al., 2001 SKQB 299

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 18, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKQB 299;(2001), 210 Sask.R. 161 (QB)

Park v. Zealandia BPO Elks Inc. (2001), 210 Sask.R. 161 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. JN.049

Dwane Park (plaintiff) v. Zealandia B.P.O. Elks Inc., Duane Kidd, Kirk Kidd, Jordan Brown, Don Sparks, Grant Demers, Frank Belanger, Steve Hanley and Don Hanley (defendants)

(1994 Q.B.G. No. 2417; 2001 SKQB 299)

Indexed As: Park v. Zealandia B.P.O. Elks Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

June 18, 2001.

Summary:

The Zealandia Elks Club hosted a cross-country snowmobile poker derby. After the plaintiff completed the derby and turned in his poker hand, he went back out for another ride on his snowmobile. While still within the designated derby area, and while operating at a high rate of speed (40-60 mph), the plaintiff struck a roadway and was thrown into a field. He was rendered a paraplegic. The plaintiff did not see a six foot high warning marker made of crossed tree branches and orange surveyor tape. The plaintiff sued the Zealandia Elks Club, and club members and officers who were involved in hosting the derby, for damages in negligence.

The Saskatchewan Court of Queen's Bench dismissed the action.

Damage Awards - Topic 65

Injury and death - Body injuries - Bladder or bowels - [See Damage Awards - Topic 67 ].

Damage Awards - Topic 67

Injury and death - Body injuries - Back - Resulting in paralysis - The plaintiff suffered a spinal cord injury in a snowmobile accident when he was 29 years old and was rendered a paraplegic - He was hospitalized for several weeks and during that time he suffered from complications in his lung that required painful intervention involving the insertion and reinsertion of a tube - Two rods were permanently inserted in his back to maintain his posture - The plaintiff suffered from bowel incontinence - His disability was permanent - The Saskatchewan Court of Queen's Bench dismissed the plaintiff's negligence action against the defendants, but assessed his damages - The court assessed nonpecuniary damages at $275,000 - See paragraphs 31 to 35 and 99 to 101.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - [See Damages - Topic 1556 ].

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - The plaintiff suffered a spinal cord injury in a snowmobile accident when he was 29 years old and was rendered a paraplegic - The Saskatchewan Court of Queen's Bench dismissed the plaintiff's negligence action against the defendants, but assessed the plaintiff's damages - In arriving at an award for loss of future earnings/earning capacity, the court held that it was appropriate to deduct a 20 percent contingency to allow for accidents, sickness, periods of unemployment and some residual earning capacity - See paragraph 105.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See second Damages - Topic 1715 ].

Damages - Topic 1715

Deductions for payments or assistance by third parties - Voluntary - From others - General - The plaintiff was rendered a paraplegic as a result of a snowmobile accident - The Saskatchewan Court of Queen's Bench dismissed the plaintiff's negligence action against the defendants, but assessed the plaintiff's damages - The parties disagreed as to whether numerous expenses paid by third parties for the benefit of the plaintiff were recoverable by the plaintiff as special damages - The court stated that "[t]he plaintiff cannot recover the cost of the benefits he received from third parties for which he was not charged and for which he is not liable to repay. This would not be the case if those third parties have subrogated rights of recovery or if he can show that he contributed the equivalent of an insurance premium in exchange for the benefits he received" - See paragraph 106.

Damages - Topic 1715

Deductions for payments or assistance by third parties - Voluntary - From others - General - The plaintiff was rendered a paraplegic as a result of a snowmobile accident - The Saskatchewan Court of Queen's Bench dismissed the plaintiff's negligence action against the defendants, but assessed the plaintiff's damages - Many items claimed by the plaintiff as future care costs pertained to continuing services that were provided gratuitously to the plaintiff as a paraplegic - The court stated that while it had previously indicated that such gratuitous services rendered to the plaintiff prior to trial were not recoverable as items of special damages, there was a difficulty in simply applying that principle to the cost of future services because the plaintiff had no guarantee that such services would continue to be provided to him at no cost - The court considered that it was more likely than not that such services would continue to be provided gratuitously and concluded that a practical approach was to award the plaintiff 25 percent of the present value of such gratuitous services - See paragraphs 112 to 118.

Torts - Topic 17

Negligence - Standard of care - Sports and games - After the plaintiff completed a cross-country snowmobile poker derby and turned in his poker hand, he went back out for another ride on his snowmobile - While still within the designated derby area, and while operating at a high rate of speed (40-60 mph), the plaintiff struck a roadway and was thrown into a field - He was rendered a paraplegic - The plaintiff did not see a six foot high warning marker made of crossed tree branches and orange surveyor tape - The plaintiff sued the hosts of the derby for damages in negligence - The Saskatchewan Court of Queen's Bench dismissed the action - The defendants' duty of care to the plaintiff ended when he stopped being a participant in the derby, which occurred when his poker hand was completed and turned in - Further, the plaintiff was travelling too fast for the terrain and was not keeping a proper lookout - The marking of the roadway by the derby hosts met the requisite standard of care - See paragraphs 44 to 97.

Torts - Topic 17

Negligence - Standard of care - Sports and games - The Saskatchewan Court of Queen's Bench stated that the scope of the duty of care owed by the hosts of a cross-country snowmobile poker derby did not extend to making the rural terrain within the designated derby area safe for high speed travel - Nor did it extend to marking every object that might be a potential hazard to a snowmobile operator travelling at high speed - However, it was another matter if objects constituted a hazard to a responsible snowmobile operator travelling at a prudent rate of speed - Derby hosts had a duty of care to participants to mark those objects if they were proximate to the areas in which snowmobiles could reasonably be expected to travel while completing the derby - See paragraph 54 - The court further stated that the duty of care of hosts of cross-country snowmobile poker derbies did not apply to hosts of snowmobile trail rallies or derbies in which the participants were confined to a designated and marked course - See paragraph 63.

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - The Saskatchewan Court of Queen's Bench held that there were policy considerations which should be taken into account in limiting the scope of the duty of care owed by hosts of cross-country snowmobile poker derbies to derby participants - The court considered the fact that because cross-country snowmobile poker derbies were relatively unregulated and unsupervised recreational activity, it was virtually impossible for derby hosts to make the designated derby area foolproof by marking every hazard - The participants were also responsible for their own safety - Another policy consideration was the legislative intent evident in the Snowmobile Act to grant a level of protection to persons sued by snowmobile operators - See paragraphs 45 to 56.

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - [See first Torts - Topic 17 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - After the plaintiff completed a cross-country snowmobile poker derby, the plaintiff went back out for another ride on his snowmobile - The plaintiff struck a roadway and was injured - The plaintiff sued the derby hosts for damages - The Saskatchewan Court of Queen's Bench held that the duty of care of the derby hosts was limited to the geographical area within which the derby was to take place and that the plaintiff's accident occurred within the designated derby area - The court stated that even though the fields on the north side of the road where the plaintiff had been travelling were outside the derby area designated on a rough sketch made available to derby participants, the fact that the derby hosts marked the roadway in question indicated that they considered the ditches adjacent to both sides of the road (and the fields for at least some distance in from the ditches) to be part of the designated area - The actions of the derby hosts in marking the roadway were a better indication than the roughly drawn sketch - See paragraph 61.

Torts - Topic 86

Negligence - Duty of care - Duty to warn -[See first Torts - Topic 17 ].

Torts - Topic 678

Negligence - Snow vehicles and all terrain vehicles - Lookout - [See first Torts - Topic 17 ].

Torts - Topic 679

Negligence - Snow vehicles and all terrain vehicles - Speed - [See first Torts - Topic 17 ].

Torts - Topic 684

Negligence - Snow vehicles and all terrain vehicles - Standard of care - Race course - Cross-country snowmobile poker derby - [See both Torts - Topic 17 ].

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 36].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 37].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492; [1978] A.C. 728 (H.L.), refd to. [para. 37].

Nielson v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 29 C.C.L.T.(2d) 97, refd to. [para. 37].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 37].

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; 3 C.C.L.T. 225, refd to. [para. 100].

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; 83 D.L.R.(3d) 480, refd to. [para. 100].

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. 100].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 100].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 100].

Ostapowich v. Benoit et al. (1982), 14 Sask.R. 233 (Q.B.), refd to. [para. 100].

Parypa et al. v. Wickware et al. (1999), 119 B.C.A.C. 32; 194 W.A.C. 32; 169 D.L.R.(4th) 661 (C.A.), refd to. [para. 105].

Salmon v. Gurney et al. (1997), 153 Sask.R. 1 (Q.B.), refd to. [para. 105].

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, refd to. [para. 106].

Counsel:

D.I. Quon, D.E. Ferguson and M.W. Owens, for the plaintiff;

G.A. Thompson and K.L. Smith, for the defendants.

This action was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on June 18, 2001.