Prosser v. 20 Vic Management Inc. et al., 2009 ABQB 177

• Judge: Cairns, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 19, 2009
• Citations: 2009 ABQB 177;(2009), 535 A.R. 92 (QB)

Prosser v. 20 Vic Mgt. Inc. (2009), 535 A.R. 92 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.106

Brenda Prosser (plaintiff) v. 20 Vic Management Inc., Ontrea Inc., Ledcor Industries Inc., ABC Corporation and DEF Corporation (defendants)

(0201 00631; 2009 ABQB 177)

Indexed As: Prosser v. 20 Vic Management Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Cairns, J.

March 19, 2009.

Summary:

Prosser, then 39 years of age, tripped and fell over a protruding fence leg at the edge of a temporary construction zone at a Mall. The fall was in February 2000, in the early afternoon. She testified that she landed on her right side with her right arm outstretched. The defendant occupier, Ledcor Industries Inc., conceded at the opening of trial, that should liability be proven, it would be responsible on behalf of all the defendants.

The Alberta Court of Queen's Bench found the parties equally at fault, and assessed damages as follows: general damages ($100,000); loss of earning capacity ($50,000); special damages ($54,500); housekeeping ($36,500); and cost of future care ($90,000). The damages totalled $331,000, of which Prosser was entitled to 50% from Ledcor, and thus $165,500.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 461

Injury and death - Special damage awards - Cost of future care - The plaintiff sustained permanent injuries to her lower back and sacroiliac joints in this trip and fall case - Since the accident, she had engaged in a plethora of treatments and interventions to enable her to manage her life, particularly her employment - Until she went on short-term disability, she had consistently received excellent evaluations - For cost of future care, the plaintiff claimed $1,000 per month x 12 x multiplier of 22.3, for a total of $267,600 - The Alberta Court of Queen's Bench awarded $4,000 per year x multiplier of 22.3, rounded to $90,000, subject to apportionment on liability and contributory negligence - Having regard to the evidence, the fact that there was some small contribution from the employer's insurer, and the fact that many of the physical items and facilities were currently in place, $4,000 per year for life was fair to both parties - That sum permitted the appropriate psychological and physical treatment, and mechanical appliances to allow the plaintiff to continue with her rehabilitation and to resume her career - See paragraphs 368 to 372.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff tripped over a construction fence leg which protruded onto a walkway at a shopping mall, and sued the defendant occupier - The Alberta Court of Queen's Bench awarded $50,000 for loss of earning capacity - Given the plaintiff's eight year work history following the trip and fall, she had not been rendered less capable of earning income, less marketable, or less able to take advantage of opportunities - On a balance of probabilities, the plaintiff would not be forced to vacate or be unable to continue her employment position due to the trip and fall - However, her own self-worth and her subjective impression of her ability to continue on a challenging career path had nonetheless suffered - Given the adaptations she had made in the past, and which she would be required to make into the future to accommodate the pain, she deserved a measure of compensation - Those adaptations included: travelling back and forth from work during the lunch hour to rest, working shorter hours, taking work home, using ergonomic desks, chairs and work stations, making adjustments in her posture throughout her work day, using a sacroiliac belt, heat, and cold, and enduring discomfort while travelling for business - The adaptations might at some point and in some way, affect the plaintiff's ongoing success or career advancement - See paragraphs 254 to 260.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - In 2000, the plaintiff, then 39 years of age, tripped and fell - Before the accident, she had employed a housekeeper bi-weekly - Post accident, the plaintiff claimed the incremental cost of having to hire the homemaker weekly ($41,340, being 26 weeks x $100 per week x multiplier of 15.9) - The defence submitted that the plaintiff would likely have hired the housekeeper on a weekly basis due to ever increasing employment responsibilities, and that housekeeping losses ought to be subsumed into non-pecuniary general damages - The Alberta Court of Queen's Bench awarded $36,500 (rounded) - If claims could be readily quantified, they ought not to be subsumed in general damages - The plaintiff had sustained an injury which had resulted in a permanent residual impairment of 5% total body, and a "mild disability" - At least from 2001, the housekeeper had been utilized weekly, partly due to the plaintiff's increased employment responsibilities and partially due to her injuries - 50% of the incremental utilization of the homemaker could be attributed to the injuries ($20,675, calculated 13 weeks x $100 per week x 15.9) - In addition, the plaintiff had been obligated to "hire out" the heavier tasks ($15,900, calculated $1,000 per year x 15.9) - See paragraphs 320 to 334.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other non-pecuniary damages - In 2000, the plaintiff, then 39 years of age, tripped and fell over a protruding fence leg at the edge of a temporary construction zone - She described her injury as a very serious musculo-ligamentous, soft tissue and disc injury which had a marked effect on her function, her enjoyment of life on a daily basis and her career - She sought an award of general damages of $160,000 - The defendant submitted that general damages be assessed in the range of $10,000 to $18,000 - The Alberta Court of Queen's Bench assessed general damages at $100,000 - In contrasting the facts of this case to the cases offered by the plaintiff, a substantial difference existed in that the plaintiff did not undergo surgery, and surgery had not been predicted or prescribed by any of her doctors - As to the case law provided by the defendants, the court found some stark differences which made them disparate - There was no indication in the instant case that the plaintiff's symptoms were likely to decrease, or that her injuries were likely to resolve - In fact, the opposite was proven more likely - See paragraphs 244 to 248.

Damages - Topic 66

General principles - Considerations in assessing damages - Credibility of injured party - The plaintiff's claim arose from her tripping and falling over a protruding fence leg at the edge of a temporary construction zone at a shopping mall - The defendant occupier conceded that, should liability be proven, it would be responsible on behalf of all the defendants - Over the years since the incident, the plaintiff had repeatedly reported to her doctors and caregivers that she "fell over" or "flew over" one or two steps - The Alberta Court of Queen's Bench questioned the plaintiff's credibility, given the consistent false subsequent reporting of the incident - The plaintiff attempted to embellish the fall and resultant injuries - The credibility finding had a marked impact upon the court's findings: as to liability, the court found that both parties were each partially to blame (the court did not believe that the plaintiff was using caution or paying attention to where she was walking at the time of the trip and fall); the effectiveness of the medical evidence elicited by the plaintiff had been diminished; and as to loss of income, her claims were denied on the basis that their foundation was essentially based on subjective complaints without the requisite clinical or radiological findings to concretize the severity of the pain complaints - See paragraphs 78 to 86.

Damages - Topic 1415

Special damages - Loss of wages - Evidence and proof - The plaintiff's claim arose from her tripping and falling - She was a chartered accountant by profession - For the eight years since the time of the trip and fall in 2000, she had been employed in demanding senior executive positions, with ever increasing responsibilities - She decided to take short-term disability some five months prior to the trial, and was not presently working - She anticipated long-term disability - The plaintiff argued she was unable to work because she was unable to concentrate - The Alberta Court of Queen's Bench denied the plaintiff's claim for future loss of income - "To say that I am sceptical of her motives is to understate the obvious" - The court found that the plaintiff was capable of resuming and maintaining her employment position, particularly with the assistance of medical appliances, strategies, medical interventions and conservative treatments (an award was provided to cover those costs) - The plaintiff's injuries and her permanent 5% total body disability and mild impairment did not militate against her continuing her career - The court had acknowledged a diminution of the plaintiff's capabilities in her career under the heading of "loss of earning capacity" - See paragraphs 417 to 421.

Damages - Topic 1554

General damages - General damages for personal injury - Calculation and method of assessment - General principles - The Alberta Court of Queen's Bench stated that "[g]eneral damages are meant to compensate a plaintiff for non-pecuniary losses, including pain and suffering, limitations of activities, restrictions of activities, and loss of earning capacity" - See paragraph 232.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - It had been eight years since the plaintiff, then 39 years of age, tripped and fell over a protruding fence leg at the edge of a temporary construction zone at a shopping mall - She testified that she landed on her right side with her right arm outstretched - On the day of the incident, the plaintiff was experiencing problems with her neck and shoulders and had attended at the office of her chiropractor - The Alberta Court of Queen's Bench, having affixed partial liability upon the defendant occupier, considered the issue of causation, namely, whether the plaintiff's injuries related to the trip and fall, and if so, to what degree - The medical evidence overwhelmingly favoured the conclusion that the trip and fall either caused, or materially contributed to, the plaintiff's current physical condition - The plaintiff did not have "significant" lower back or sacroiliac joint problems prior to her trip and fall - She had behaved pro-actively in seeking treatment and acting on the recommendations of health care practitioners - Any history of lower back problems was sporadic and not chronic - The court concluded that the present injuries were caused, or materially contributed to, by the trip and fall accident - See paragraphs 226 to 229.

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - The plaintiff's claim arose from her tripping and falling over a protruding fence leg at the edge of a temporary construction zone at a shopping mall - The defendant occupier (Ledcor) conceded that should liability be proven, it would be responsible on behalf of all the defendants - The Alberta Court of Queen's Bench found that both parties were each partially to blame - Firstly, in the face of a foreseeable risk which it knew or ought to have known might cause harm, Ledcor failed in its affirmative duty to ensure the safety of the plaintiff, who was a proper user of the property - Ledcor failed to place signs, sandbags, cones, or a colourful brightly painted fence leg - Secondly, the plaintiff was simply not paying attention, or keeping a proper lookout, or was in a rush, lest she would not have tripped and fallen - Morever, the evidence of the plaintiff was that she was not distracted and that she was aware that she was in a construction area - Thus, the court was unable to accept her evidence that she was using caution and taking reasonable care for her whereabouts - She had no valid explanation for not seeing the protruding fence leg which ought to have been obvious to her - See paragraphs 25 to 77, 86 to 88.

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - The plaintiff tripped over a construction fence leg which protruded onto a walkway at a shopping mall - The defendant occupier argued that in the event of contributory negligence, then liability should be apportioned at 75% for the plaintiff and 25% for the defendant - The Alberta Court of Queen's Bench found that the plaintiff and the defendant were each 50% responsible - The Occupier's Liability Act specifically mandated a positive and affirmative obligation on the occupier to make a visitor safe - Section 15 of that Act provided that where there was a failure to discharge that duty, but the visitor was also to blame, then contributory negligence might be at issue - Lacking sufficient evidence to determine the different degrees of fault, the court apportioned the liability equally, pursuant to s. 1 of the Contributory Negligence Act - See paragraphs 89 to 94.

Cases Noticed:

Preston v. Canadian Legion of the British Empire Service League, Kingsway Branch No. 175 and Edmonton (City) (1981), 29 A.R. 532 (C.A.), refd to. [para. 24].

Krause et al. v. Pittman et al., [2004] A.R. Uned. 340; 2004 ABQB 325, refd to. [para. 24].

Forsyth v. Pender Harbour Golf Club Society, [2006] B.C.T.C. 1108; B.C.W.L.D. 183; 2006 BCSC 1108, refd to. [para. 35].

Sandhu v. Wellington Place Apartments et al. (2008), 234 O.A.C. 200; 2008 ONCA 215, refd to. [para. 36].

Hibberd et al. v. Hurricane Hydrocarbons Ltd. et al. (2006), 407 A.R. 1; 2006 ABQB 707, refd to. [para. 43].

Anderson et al. v. Canada Safeway Ltd. (2004), 357 A.R. 6; 334 W.A.C. 6; 2004 ABCA 239, refd to. [para. 44].

Millar v. Westfair Foods Ltd. et al. (2001), 289 A.R. 338; 2001 ABQB 448, refd to. [para. 47].

Roasting v. Blood Band et al. (1999), 241 A.R. 171 (Q.B.), refd to. [para. 51].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 53].

Charko v. Holt (Wm.) Tree Farms Ltd. (1990), 113 A.R. 161 (Q.B.), refd to. [para. 58].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 195].

Horsley v. MacLaren, [1972] S.C.R. 441, refd to. [para. 196].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, refd to. [para. 198].

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, appld. [para. 199].

Wittmeier v. Scholes (1999), 239 A.R. 42, refd to. [para. 234].

Dushynski v. Rumsey (2001), 295 A.R. 309 (Q.B.), varied (2003), 327 A.R. 373; 296 W.A.C. 373 (C.A.), refd to. [para. 235].

Thiessen v. Selke, [2007] A.R. Uned. 211; 2007 ABQB 217, refd to. [para. 237].

Sluth v. Kostyniuk et al., [2004] A.R. Uned. 807; 2004 ABQB 917, refd to. [para. 238].

Carrier v. Wan et al., [2008] A.R. Uned. 222; 2008 ABCA 318, refd to. [para. 239].

Sinclair v. Wong, [2005] A.R. Uned. 437; 2005 ABQB 369, refd to. [para. 240].

Gilmour v. Machibroda et al., [2008] B.C.T.C. Uned. 124; B.C.W.L.D. 6150; 2008 BCSC 260, refd to. [para. 240].

Gilroy v. Schmidt et al., [2006] A.R. Uned. 228; 2006 ABQB 214, refd to. [para. 240].

Weinmuller v. Tait, [2006] B.C.T.C. Uned. 190 (S.C.), refd to. [para. 240].

Vollrath v. Bruce (2000), 282 A.R. 364; 2000 ABQB 972, refd to. [para. 240].

Dyck et al. v. Wilkinson et al., [2004] A.R. Uned. 657; A.W.L.D. 618; 2004 ABQB 731, refd to. [para. 242].

Switzer v. Buchi, [1998] B.C.T.C. Uned. B13 (S.C.), refd to. [para. 242].

Mushta v. Best, [1998] B.C.T.C. Uned. 686 (S.C.), refd. to. [para. 242].

Graham v. Rogers, [2000] B.C.T.C. Uned. 202; 2000 BCSC 605, refd to. [para. 242].

McLaren v. Schwalbe (1994), 148 A.R. 1 (Q.B.), refd to. [para. 242].

Pavicic v. Pelchat (2003), 332 A.R. 213 (Q.B.), refd to. [para. 242].

Diakow v. Hughes et al., [2008] A.R. Uned. 603; A.W.L.D. 4138; 2008 ABQB 567, refd to. [para. 249].

Robinson et al. v. Fiesta Hotel Group Resorts et al. (2008), 450 A.R. 167; A.W.L.D. 2907; 2008 ABQB 311, refd to. [para. 249].

Reeves v. Arsenault; Reeves v. Gauthier (1998), 168 Nfld. & P.E.I.R. 251; 517 A.P.R. 251 (P.E.I.C.A.), refd to. [para. 250].

Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.), refd to. [para. 252].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [para. 253].

Willeson v. Calgary, [2007] A.R. Uned. 485; 2007 ABQB 225, refd to. [para. 333].

Seich v. Tobin, [2007] A.R. Uned. 410; 161 A.C.W.S.(3d) 77; 2007 ABQB 492, refd to. [para. 418].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 422].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 422].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 2000, c. C-27, sect. 1 [para. 93].

Occupiers' Liability Act, R.S.A. 1980, c. c.O-4, sect. 5 [para. 23]; sect. 15(1) [para. 92].

Authors and Works Noticed:

Clerk & Lindsell, On Torts (2006), pp. 12 to 29 [para. 53].

Linden, Alan M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 727 [para. 58].

Counsel:

Greg Rodin (Rodin Law Firm), for the plaintiff;

Erin MacPherson and Gregory Jaycock (Parlee McLaws), for the defendant, Ledcor Industries Inc.

This action was heard on October 14 to 28, 2008, before Cairns, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Calgary, Alberta, on March 19, 2009.