Pettipas v. Klingbeil et al., (2000) 260 A.R. 1 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 12, 1999
• Citations: (2000), 260 A.R. 1 (QB)

Pettipas v. Klingbeil (2000), 260 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MR.124

Douglas Pettipas and Margaret Pettipas (plaintiffs) v. Mark Klingbeil and Wojciech Studzinski (defendants)

(Action No. 9401-16795)

Indexed As: Pettipas v. Klingbeil et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

February 11, 2000.

Summary:

The plaintiffs brought a negligence action for damages against the defendants for in­juries suffered in a motor vehicle accident on icy roads. The plaintiffs' vehicle stopped on a hill. It was rear-ended by the defendant Klingbeil, who was then rear-ended by the defendant Studzinski. At issue was whether Klingbeil had struck the plaintiffs on his own, or whether Klingbeil was propelled into the plaintiffs as a result of being struck by Studzinski.

The Alberta Court of Queen's Bench found the defendant Klingbeil negligent and solely at fault. Klingbeil rear-ended the plaintiffs before he was rear-ended by Studzinski. The subsequent collision between Klingbeil and Studzinski did not result in the plaintiffs being rear-ended a second time. The court assessed damages accordingly.

Damage Awards - Topic 178

Injury and death - Neck injuries - Whip­lash - The plaintiff husband and wife, now 57 and 51 years of age respectively, both suffered a mild to moderate whiplash injury in a 1992 low impact rear-end collision - Both suffered neck, shoulder and back pain and headaches, yet missed almost no time from their employment - Seven years later, both complained of continuing symptoms that were not sup­ported by independent medical evidence or their work history - The Alberta Court of Queen's Bench was satisfied that the plaintiffs complaints were exaggerated - The court held that the wife's injury should have resolved within two years - The husband's injury should have resolved in 18 months - The wife's general damages for nonpecuniary loss were assessed at $18,000 - The husband's general damages for nonpecuniary loss were assessed at $14,000 - See paragraphs 25 to 59.

Damage Awards - Topic 460

Injury and death - Special damage awards - Loss of housekeeping capacity - The plaintiff husband and wife, now 57 and 51 years of age respectively, both suffered a mild to moderate whiplash injury in a 1992 low impact rear-end collision - Both suffered neck, shoulder and back pain and headaches - The wife claimed damages for pretrial loss of housekeeping capacity - No substitute housekeeper was required, but the wife's two teenaged daughters were required to do most of the housework - The agreed cost of a replacement house­keeper was $11 per hour - The Alberta Court of Queen's Bench assessed pretrial loss of housekeeping capacity at 10 hours per week for two years following the accident, the time at which the court found that the wife should have been fully recovered - At $11 per hour, the damage award totalled $11,440 - The claim for future loss of housekeeping capacity was dismissed - See paragraphs 64 to 68, 70.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 460 ].

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - The plaintiff husband and wife, now 57 and 51 years of age respect­ively, both suffered a mild to moderate whiplash injury in a 1992 low impact rear-end collision - Both suffered neck, shoulder and back pain and headaches - Both of them claimed damages for loss of consortium - Although there was evidence that they were unusually crabby and intol­erant following the accident, the stress in their relationship was short-lived and there was no evidence of a change in their nor­mal sexual relationship - The Alberta Court of Queen's Bench awarded each spouse $500 general damages for loss of consortium - See paragraphs 62 to 63.

Damages - Topic 1437

Special damages - Cost of home construc­tion, repairs or alterations - The plaintiff husband and wife, now 57 and 51 years of age respect­ively, both suffered a mild to moderate whiplash injury in a 1992 low impact rear-end collision - They claimed damages of approximately $110,000 re­specting the increased costs and delays in constructing their dream retirement home -The Alberta Court of Queen's Bench held that the defendant's liability was limited to $12,270, being the extra costs of materials and labour resulting from the accident, plus the interest costs of borrowing that extra amount - Other increased costs and delays were not attributable to the accident - See paragraphs 84 to 108.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The female plaintiff, now 51 years of age, suffered a mild to moderate whiplash injury in a 1992 low impact rear-end collision - The plaintiff, a regis­tered nurse, missed minimal time from work, yet now claimed general damages for impairment of future earning capacity - The Alberta Court of Queen's Bench dismissed the claim - The plaintiff should have fully recovered within two years of the accident - Accordingly, she suffered from no permanent disability or impair­ment restricting or lessening her employability - See paragraphs 71 to 81.

Torts - Topic 557

Negligence - Motor vehicle - Evidence and burden of proof - Rear end collisions - The plaintiffs' vehicle was stopped in a line of traffic on an icy hill - The plain­tiffs were rear-ended by the defendant Klingbeil, who was then rear-ended by the defendant Studzinski - At issue was whether Klingbeil had already struck the plaintiffs when he was struck by Studzin­ski or whether Klingbeil was propelled into the plaintiffs as a result of being struck by Studzinski - The Alberta Court of Queen's Bench found the defendant Klingbeil neg­ligent and solely at fault - The evidence of both eye-witnesses and expert evidence supported a finding that Klingbeil rear-ended the plaintiffs before he was rear-ended by Studzinski - The subsequent collision between Klingbeil and Studzinski did not result in the plaintiffs being rear-ended a second time - See paragraphs 1 to 14.

Cases Noticed:

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

Morris et al. v. Budnarchuk (1997), 204 A.R. 197 (Q.B.), refd to. [para. 60].

Bourassa v. Ryan, [1997] A.R. Uned. 201 (Q.B.), refd to. [para. 60].

Liu v. Hansen, [1996] B.C.J. No. 591 (S.C.), refd to. [para. 60].

Harbora v. McIvor et al. (1997), 202 A.R. 99 (Q.B.), refd to. [para. 60].

McCarroll v. Anderson (1994), 163 A.R. 204 (Q.B.), refd to. [para. 61].

Watkins v. Goode (1995), 168 A.R. 321 (Q.B.), refd to. [para. 61].

Simmie v. Parker and Unger (1994), 164 A.R. 178 (Q.B.), refd to. [para. 61].

Burroughs v. Singh (1992), 142 A.R. 1 (Q.B.), refd to. [para. 61].

Bee v. Sutherland (1996), 186 A.R. 55 (Q.B.), refd to. [para. 61].

Kinsella v. McLean (1991), 122 A.R. 55 (Q.B.), refd to. [para. 61].

Badger v. Dowsett (1994), 156 A.R. 132 (Q.B.), refd to. [para. 61].

Godkin v. Boresky (1999), 249 A.R. 383 (Q.B.), refd to. [para. 61].

Jessal v. Maxwell (1995), 167 A.R. 258 (Q.B.), refd to. [para. 61].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), refd to. [para. 64].

Daly v. Steam Navigation Co., [1980] 3 All E.R. 696, refd to. [para. 64].

McLaren v. Schwalbe, [1994] 4 W.W.R. 532; 148 A.R. 1 (Q.B.), refd to. [para. 64].

Benstead v. Murphy (1994), 157 A.R. 198; 77 W.A.C. 198 (C.A.), refd to. [para. 64].

Pallos v. Insurance Corp. of British Col­umbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310 (C.A.), refd to. [para. 74].

Kwei et al. v. Bosclair et al. (1991), 6 B.C.A.C. 314; 13 W.A.C. 314 (C.A.), refd to. [para. 74].

Brown v. Golaiy, [1995] B.C.J. No. 31 (S.C.), refd to. [para. 74].

Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (S.C.), refd to. [para. 75].

Majer v. Morgan et al., [1997] B.C.T.C. Uned. D64 (S.C.), affd. (1999), 122 B.C.A.C. 283; 200 W.A.C. 283 (C.A.), refd to. [para. 78].

Hall v. Zhou (1996), 72 B.C.A.C. 148; 119 W.A.C. 148 (C.A.), refd to. [para. 79].

Stafford v. Motomochi (1996), 85 B.C.A.C. 145; 138 W.A.C. 145 (C.A.), refd to. [para. 79].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 62].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 486 [para. 54]; 490 [para. 62].

Counsel:

R.H. Guthrie, for the plaintiff;

A.G.P. Shewchuk, for the defendant, Mark Klingbeil;

B.L. Boeckx, for the defendant, Wojciech Studzinski.

This action was heard on October 12, 1999, before Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judg­ment on February 11, 2000.