Robustelli v. Charlottetown (City), (1998) 166 Nfld. & P.E.I.R. 143 (PEITD)

• Judge: DesRoches, J.
• Case Date: August 13, 1998
• Jurisdiction: Prince Edward Island
• Citations: (1998), 166 Nfld. & P.E.I.R. 143 (PEITD)

Robustelli v. Ch'town (1998), 166 Nfld. & P.E.I.R. 143 (PEITD);

    511 A.P.R. 143

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. AU.023

Helen Robustelli (plaintiff) v. The City of Charlottetown (defendant)

(GSC-14807)

Indexed As: Robustelli v. Charlottetown (City)

Prince Edward Island Supreme Court

Trial Division

DesRoches, J.

August 13, 1998.

Summary:

A pedestrian sued the City of Charlottetown for damages for injuries suf­fered when she fell on a sidewalk.

The Prince Edward Island Supreme Court, Trial Division, allowed the action and assessed damages accordingly.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclu­sions - Policies or "policy" decisions - The City of Charlottetown did not conduct sidewalk inspections - A depression in a sidewalk caused a pedestrian to fall - She sued the City - The City asserted that it allocated its limited resources in a rational manner and it was exempt from liability where its sidewalk maintenance approach resulted from a policy decision dictated by budgetary constraints - The Prince Edward Island Supreme Court, Trial Division, held that the City had not addressed the issue of an inspection program and had not made a policy decision - Not having an inspection system was unreasonable - By doing noth­ing, the City breached its duty of care and its obligations under the Charlottetown Area Municipalities Act and Occupiers Liability Act - The court rejected the alternative defence of contributory negli­gence - See paragraphs 1 to 34.

Damage Awards - Topic 59

Injury and death - Body injuries - Pelvis and public bone - Hip - A plaintiff sus­tained a hip fracture which was addressed surgically using a hip screw - Initially suffered extreme pain - Continued to suffer pain to a lesser extent - A 10% restriction of hip motion - One leg was shortened by ½ inch, which made it diffi­cult to dance and caused fatigue - Requires a cane - Has a phobia of falling - Although her recovery was "remark­able", the injury had a con­siderable impact on her lifestyle - The Prince Edward Island Supreme Court, Trial Division, awarded the plaintiff $40,000 general damages - The court considered that the plaintiff's unrelated medical condi­tions had caused her pain and discomfort before the accident and would likely have continued to do so had the accident not occurred - See paragraphs 35 to 50.

Damages - Topic 1273

Losses by third parties - Persons entitled to claim - Husband and wife for each other - The plaintiff commenced a per­sonal injury action - The husband was not a party to the action - The Prince Edward Island Supreme Court, Trial Division, awarded the plaintiff damages in trust for the hus­band for the value of voluntary services provided by him to aid in her convales­cence - See paragraphs 70 to 75.

Damages - Topic 1288

Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - [See Damages - Topic 1273 ].

Damages - Topic 1560

General damages - General damages for personal injury - Factors tending to reduce award - [See Damage Awards - Topic 59 ].

Interest - Topic 5008

Interest as damages - Prejudgment interest - General principles - Entitlement - A plaintiff resident in the United States obtained judgment in a personal injury action - She had received reimbursement for medical expenses from a Medicare scheme and a group health insurance plan -There was no evidence that the plaintiff was going to reimburse those authorities - The defendant asserted that the plaintiff should not receive prejudgment interest on these medical expenses, because there had been no out-of-pocket expenses incurred by the plaintiff and the claim was not a subrogated one - The Prince Edward Island Supreme Court, Trial Division, denied the plaintiff prejudgment interest for the reim­bursed medical expenses - See paragraphs 55, 56.

Interest - Topic 5012.2

Interest as damages - Prejudgment interest - General principles - Special damages - [See Interest - Topic 5008 ].

Municipal Law - Topic 1804

Liability of municipalities - Negligence - Standard of care - Maintenance of side­walks - [See Crown - Topic 1645 ].

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - [See Crown - Topic 1645 ].

Municipal Law - Topic 1819

Liability of municipalities - Negligence - Defences - Contributory negligence - [See Crown - Topic 1645 ].

Torts - Topic 3588

Occupiers' liability or negligence for dan­gerous premises - Negligence of occupier -Sidewalks - [See Crown - Topic 1645 ].

Torts - Topic 6601

Defences - Contributory negligence - Gen­eral - What constitutes contributory negli­gence - [See Crown - Topic 1645 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See Crown - Topic 1645 ].

Cases Noticed:

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 8].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 8].

Hennessey v. Toronto, [1928] 4 D.L.R. 378 (Ont. S.C.), refd to. [para. 8].

Curliss v. Bolton, [1939] 1 D.L.R. 772 (Ont. S.C.), refd to. [para. 8].

Holemans et al. v. St. Vital (City) (1973), 43 D.L.R.(3d) 459 (Man. C.A.), refd to. [para. 8].

Simonoff v. North York (City) (1986), 32 M.P.L.R. 188 (Ont. Dist. Ct.), refd to. [para. 8].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 17].

Swinamer v. Nova Scotia (Attorney Gen­eral) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 17].

Lysack v. Burrard Motor Inn and Vancouver (City) (1991), 2 B.C.A.C. 216; 5 W.A.C. 216; 58 B.C.L.R.(2d) 33 (C.A.), affing. [1989] B.C.J. No. 1910 (S.C.), consd. [para. 27].

Nielsen v. Kamloops (City), Hughes and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 31].

Rayner v. Kingston, [1991] 1 P.E.I.R. B5; 88 Nfld. & P.E.I.R. 214; 274 A.P.R. 214 (P.E.I.C.A.), refd to. [para. 72].

Statutes Noticed:

Charlottetown Area Municipalities Act, S.P.E.I. 1994, c. 6, sect. 44. sect. 45 [para. 13].

Occupiers Liability Act, R.S.P.E.I. 1988, c. O-2, sect. 3 [para. 15].

Counsel:

Sean Casey, for the plaintiff;

Robert Tocchet, for the defendant.

This case was heard at Charlottetown, Prince Edward Island, on May 27, 28, 1998, before DesRoches, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following decision on August 13, 1998.