Wade v. Baxter, (2001) 302 A.R. 1 (QB)

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 10, 2001
• Citations: (2001), 302 A.R. 1 (QB);2001 ABQB 812

Wade v. Baxter (2001), 302 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. NO.071

Diana Shirley Wade (plaintiff) v. Lester Harold Baxter (defendant)

(Action No. 9904 00142; 2001 ABQB 812)

Indexed As: Wade v. Baxter

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Slatter, J.

October 25, 2001.

Summary:

The plaintiff sued for damages for personal injuries suffered in an accident. The defendant admitted liability, but asserted that the plaintiff was contributorily negligent.

The Alberta Court of Queen's Bench apportioned liability 85% to the defendant and 15% to the plaintiff and assessed damages accordingly.

Damage Awards - Topic 127

Injury and death - Leg injuries - Femur - An accident resulted in a plaintiff suffering serious soft tissue injuries to her leg and a fractured right femur - She required four surgeries - Complications included: a massive infection of both thighs; surgical scarring to thighs and knees; a marked gait impairment; chronic pain; marked degenerative change in the right knee; restricted movement in the right knee and external rotation deformity; and a surgically installed internal fixation device in the right thigh - A 15% permanent partial disability - A candidate for knee replacement surgery - Able to tend to daily personal needs, cooking and light housekeeping, but at the cost of pain and time - Unable to perform heavier tasks - Had a pre-existing major depressive disorder-recurrent (M.D.D.) with a 90% chance of further episodes - The accident directly caused an M.D.D. episode - The symptom had a significant effect on her mental health from 1998 onward, but the effects were gradually subsiding - The Alberta Court of Queen's Bench awarded the plaintiff general damages of $100,000 - See paragraphs 103 to 105.

Damage Awards - Topic 130

Injury and death - Leg injuries - Knee - [See Damage Awards - Topic 127 ].

Damage Awards - Topic 132

Injury and death - Leg injuries - Scarring - [See Damage Awards - Topic 127 ].

Damage Awards - Topic 145

Injury and death - Leg injuries - Lacerations and soft tissue injuries - [See Damage Awards - Topic 127 ].

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 127 ].

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - A plaintiff in a personal injury action had a pre-existing major depressive disorder-recurrent (M.D.D.) with a 90% chance of further episodes - The Alberta Court of Queen's Bench stated that "A tortfeasor must take his victim as he finds her. It is no excuse that the victim was more susceptible to injury than the average person. So the Plaintiff's pre-existing M.D.D. - Recurrent condition, which was controlled or latent prior to the accident, does not reduce the amount of damages to be awarded for the psychological damage suffered by the Plaintiff as a result of the accident ... But the Defendant need not pay for pre-existing damage." - See paragraph 97.

Damages - Topic 595

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's mental condition - [See Damages - Topic 591 ].

Damages - Topic 1412

Special damages - Loss of wages - Deductions - A plaintiff in a personal injury action worked as a cook on a contract basis through a numbered company which allowed her to take certain deductions from her taxable income - The defendant asserted that the plaintiff's gross income should be reduced by subtracting all of the expenses she deducted in her company - The plaintiff's economist opined that expenses were those amounts that had to be laid out to earn income while deductions were amounts that were laid out whether or not the plaintiff was working and were deductible for tax purposes under the Income Tax Act - The Alberta Court of Queen's Bench accepted the economist's approach - The particular idiosyncrasies of the income tax regime should not affect the fundamental earning capacity of an injured plaintiff - Only those expenses directly related to employment, in the sense that they stop when the employment stopped, were to be deducted from income - See paragraphs 113 and 114.

Damages - Topic 1412

Special damages - Loss of wages - Deductions - Contingencies - A plaintiff in a personal injury action worked as a cook - The Alberta Court of Queen's Bench applied negative contingencies of 12.5% for pretrial loss of income and 20% for post trial loss of income to take into account the seasonality in the industry, voluntary absence from the workplace, ill health, mortality and fringe benefits - The court used a lesser amount for the pretrial contingency where it was easier to predict what the plaintiff would have earned in the past than in the future - For the future loss of income, the contingencies for seasonality and industry disruption had to be higher - See paragraph 117.

Damages - Topic 1526

General damages - Elements of general damages - Loss of wages - [See second Damages - Topic 1412 ].

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of housekeeping capacity - The Alberta Court of Queen's Bench stated that when a plaintiff in a personal injury action was injured and could no longer perform all of the household tasks, the plaintiff had a number of options available - From a legal perspective, it did not matter which option the plaintiff chose - The loss of housekeeping capacity was the same in each one and the award of damages should be identical - It was irrelevant that the plaintiff might receive an award for loss of housekeeping capacity, but never expend any of it on third parties for the purposes of having the housekeeping done - To argue otherwise would be to confuse the assessment of loss of capacity with the quantification of the loss - The fact that a plaintiff could still do some tasks, but more slowly and with pain, was relevant - The court set out methods for calculating the loss - See paragraphs 140 to 144.

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of housekeeping capacity - A plaintiff in a personal injury action claimed damages for loss of housekeeping capacity - The plaintiff was able to perform some light work and was unlikely to purchase replacement household services - In assessing damages, the Alberta Court of Queen's Bench stated that just because the plaintiff continued do some light work did not mean that there was no loss of capacity with respect to those tasks - The tasks had to be done but at the cost of increased pain, that represented a loss of capacity that had to be compensated - If the tasks took longer than they would have previously taken, the lost leisure time also represented a loss of capacity which had to be compensated - See paragraph 146.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - The Alberta Court of Queen's Bench stated that statistical information about average retirement ages was undoubtedly of assistance in personal injury cases - This was particularly true when estimating the future income of children and adults in their twenties and thirties - However, as a plaintiff's age increased, it became possible to estimate the most likely retirement age from actual evidence about the particular person, and statistical data became less important - When estimating the retirement age of a more mature plaintiff, the court could do better than averages, by looking at (a) stated intentions as to retirement; (b) health; (c) attitude towards work; (d) conditions of employment, such as mandatory retirement and pensions plans; (e) the economic and social situations; (f) economic goals; and (g) statistical averages - Statistical averages could help to corroborate the previous factors and indicate how realistic the plaintiff's predictions were - They could also assist in building in contingencies - See paragraph 128.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - A plaintiff in a personal injury action sued for damages arising out of an accident, including loss of future income - The plaintiff had intended to work until age 65 - Apart from the effects of the accident, the plaintiff was in good health - Prior to the accident, the plaintiff had early symptoms of osteoporosis - She smoked - The Alberta Court of Queen's Bench concluded that the most likely voluntary retirement age for the plaintiff was 65, subject to a negative contingency for failure of health - Applying that contingency, the court concluded that the most probable retirement age was 63.5 years - Since the experts had not provided multipliers for that age, the court used the figures for retirement at age 65 and deducted a 17% contingency - See paragraphs 126 to 130.

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - [See second Damages - Topic 1412 and second Damages - Topic 1550 ].

Damages - Topic 1563

General damages - General damages for personal injury - Matters of speculation - A plaintiff in a personal injury action claimed loss of post-retirement earning capacity - The plaintiff testified that she planned to retire at age 65 and then purchase a bed and breakfast facility which she would use to supplement her retirement income - The plaintiff was no longer capable of operating such a facility and planned to purchase a house with extra rooms which she would let out to students - The plaintiff had not done any active research into this option - The Alberta Court of Queen's Bench denied the claim where it was too speculative - The positive and negative contingencies involved in the plaintiff's loss of that option were so great as to prevent the conclusion that there was a substantial possibility that she had suffered a loss - See paragraphs 132 to 137.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - A plaintiff in a personal injury action claimed for cost of future care - The Alberta Court of Queen's Bench stated that the fact that the plaintiff was unlikely to make use of a particular care item was relevant in determining if the costs were reasonable - With respect to mobility aids, the court concluded that the plaintiff would not use them until it was absolutely necessary - The only reasonable expense in this regard was the present value of the costs of the aids when the plaintiff was likely to purchase them - That date was in the distant future and dependent on a number of contingencies - The court awarded $1,000 for the mobility devices - The court also concluded that the plaintiff was unlikely to participate in long term physiotherapy, but allowed $2,500 under this category for future care - See paragraphs 152 to 156.

Evidence - Topic 228

Inferences and weight of evidence - Inferences - Inferences from refusal to answer discovery question - A plaintiff in a negligence action asserted that an adverse inference should be drawn from the defendant's refusal to give an undertaking on a particular point at examinations for discovery - The Alberta Court of Queen's Bench stated that the remedy for a failure to answer questions at examinations for discovery was to bring an application to compel an answer - Since the plaintiff did not do so, she had to be taken as having accepted the defendant's position that the question was inappropriate and no adverse inference could be drawn - See paragraph 25.

Evidence - Topic 2401.1

Special modes of proof - Presumptions - Specific presumptions - Inference from failure of party to testify - A defendant in a negligence action served notice that he would not be testifying at trial (Rules of Court, rule 296.1) - The plaintiff asserted that an adverse inference should be drawn - The Alberta Court of Queen's Bench held that rule 296.1 was designed to provide a mechanism to help identify necessary witnesses - The rule itself did not create any adverse inference, but stated that it applied "when, in law, an adverse inference might be drawn" - The defendant's argument that an inference should not be drawn where he was examined for discovery was not a complete answer - For example, if a witness's testimony was diametrically opposed to the plaintiff's testimony, but consistent with the defendant's discovery evidence, then the plaintiff would be entitled to call for an adverse inference - However, in this case the parties were the only witnesses and the defendant admitted liability - Since the plaintiff was credible and her evidence was uncontradicted, an adverse inference was unnecessary - See paragraphs 16 to 24.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The Alberta Court of Queen's Bench stated that rule 218.1(1)(a) of the Alberta Rules of Court respecting notice of expertise was designed partly to prevent surprise and partly to encourage the parties to agree on the qualifications of experts in advance of trial - The rule was of little effect where the proposed area of expertise was obvious - For example, if an orthopaedic surgeon was called as a witness, it was obvious that the area of expertise would be orthopaedics - It was only if the surgeon was to be called in some other area that the notice of expertise took on much importance - For experts whose expertise could be quite broad, the notice took on greater significance - The rule was not intended to exclude relevant evidence when there was no surprise or other prejudice to the opposing party - It was primarily directed at a witness's expertise, not the substance of witness's evidence - See paragraphs 77 and 78.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - A plaintiff in a personal injury action served a statement pursuant to rule 218.1(1)(a) of the Rules of Court stating that an expert witness would be qualified as an occupation therapist and that she would be giving evidence regarding the loss of housekeeping capacity, cost of future care and occupational disability - At trial, the plaintiff also applied to qualify her in the field of "environmental assessment" - The defendant objected - The Alberta Court of Queen's Bench qualified the witness as requested - The witness had prepared a 54 page report with several schedules - There was little doubt about the areas that she proposed to cover in her evidence - No objection to the section of the report dealing with environmental assessment was filed under rule 218.14 - There was no prejudice to the defendant - See paragraphs 75 to 78.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - A chartered accountant was qualified to give expert evidence on assessment and valuation of economic loss in a personal injury action - There was a challenge to his expertise when he attempted to comment on the accuracy and interpretation of the Statistics Canada data on retirement - The Alberta Court of Queen's Bench ruled that the testimony was within the accountant's expertise - If he was qualified to use the statistical data in preparing his reports and calculation, he had to be allowed to comment on the underlying assumptions in the statistical data and whether they were warranted - If he could not assess the reliability of the statistics, he should not have been using them - See paragraph 79.

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - [See third Evidence - Topic 7001 ].

Evidence - Topic 7077

Opinion evidence - Reports by experts - Time for service or filing - In determining the admissibility of expert reports, the Alberta Court of Queen's Bench set out an approach to the admission of expert evidence notwithstanding late compliance with the notice requirements of rule 218.1 of the Alberta Rules of Court - See paragraph 45.

Evidence - Topic 7077

Opinion evidence - Reports by experts - Time for service or filing - A plaintiff served an expert report within the time set out in rule 218.1 of the Alberta Rules of Courts - One month prior to the trial, the plaintiff served supplemental reports from two experts dealing with quantification of a damage claim which her counsel had failed to previously have quantified - The parties sought a ruling on whether the supplemental reports could be admitted - The Alberta Court of Queen's Bench noted that there was an element of surprise in that the reports contained new information - Although the defendant knew in general terms that this sort of claim was being advanced, this was the sort of thing that rule 218.1 was designed to prevent - The excuse provided for the late tendering of the reports was weak - Nevertheless, the court admitted the evidence - The evidence appeared to be relevant and material to the plaintiff's theory of the case - The inconvenience resulting from the late admission could be neutralized by an adjournment or costs - See paragraphs 35 to 46.

Evidence - Topic 7077

Opinion evidence - Reports by experts - Time for service or filing - The Alberta Court of Queen's Bench discussed the simultaneous approach and the sequential approach to disclosing expert evidence pursuant to rule 218.1 of the Alberta Rules of Court and the role of rebuttal expert evidence under rule 218.12 in each approach - The court adopted the sequential approach - See paragraphs 49 to 74.

Evidence - Topic 7080

Opinion evidence - Reports by experts - Rebuttal evidence - [See third Evidence - Topic 7077 ].

Evidence - Topic 7080

Opinion evidence - Reports by experts - Rebuttal evidence - A plaintiff in a personal injury action filed expert reports from two orthopaedic surgeons - In rebuttal, the defendant's expert suggested for the first time that the plaintiff might be a candidate for a total knee replacement - Neither of the plaintiff's experts had commented on a knee replacement - The plaintiff objected that the defendant's report was not a true "rebuttal report" - The defendant asserted that the plaintiff's experts could not comment at trial on the rebuttal report to the extent that their comments went beyond the contents of their own reports - The Alberta Court of Queen's Bench held that there was nothing objectionable about the defendant's expert suggesting a knee replacement - The plaintiff had ample notice - It was also appropriate for the treating physicians to testify respecting that option - However, the better practice would have been for the defendant to demand or the plaintiff to volunteer a "will say" statement or a supplemental report from the plaintiff's experts on what they intended to say - See paragraphs 49 to 73.

Practice - Topic 4182

Discovery - Examination - General - Objections to questions - Remedies for refusal to answer - [See Evidence - Topic 228 ].

Torts - Topic 36

Negligence - Standard of care - Carriers - Truckers - Wade hired Baxter to move her belongings - Baxter showed up a day early without a helper - After Baxter threatened to unload the truck in the parking lot, Wade agreed to assist - Baxter twice failed to position the truck for unloading - Baxter refused Wade's offer to drive - Baxter made further threats to unload in the snow - Wade protested when Baxter attempted to back up with the truck's ramp extended - Wade reluctantly agreed to hold the ramp - The truck lurched - Wade implored Baxter to drive carefully and instructed him on backing up - The truck lurched again, pinning Wade between the ramp and steps - The Alberta Court of Queen's Bench held Baxter 85% liable for Wade's injuries - Baxter created the situation by showing up early without a helper - His threats and inappropriate comments were a significant reason for Wade's compliance - Baxter should have been aware of techniques for safe use of the truck - His lack of skill led directly and immediately to the accident - Wade was 15% liable - By participating in a dangerous manoeuvre, Wade failed to take sufficient care for her own safety - See paragraphs 27 to 33.

Torts - Topic 381

Negligence - Motor vehicle - Standard of care of driver - On backing or moving in reverse - [See Torts - Topic 36 ].

Torts - Topic 6638

Defences - Contributory negligence - Particular cases - Participation in dangerous activities - [See Torts - Topic 36 ].

Cases Noticed:

Gibb v. Ellis (1959), 17 D.L.R.(2d) 262 (B.C.S.C.), refd to. [para. 20].

Decoine v. Firstrider et al. (1993), 141 A.R. 74; 46 W.A.C. 74; 9 Alta. L.R.(3d) 113 (C.A.), refd to. [para. 20].

Sabol v. Haljan, [1981] A.J. No. 514 (C.A.), refd to. [para. 22].

Guarantee Co. of North America v. Beasse et al. (1992), 124 A.R. 161; 7 C.L.R.(2d) 194 (Q.B.), refd to. [para. 22].

Pro-Express Ltd. v. Thew et al. (1996), 185 A.R. 285 (Q.B.), dist. [para. 25].

Essences of Canada v. Essen Trading Co., [1994] O.J. No. 2566, dist. [para. 25].

Bawas Gas Bars Ltd. v. Kiosses et al. (1998), 83 O.T.C. 241 (Gen. Div.), dist. [para. 25].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (2001), 293 A.R. 41; 257 W.A.C. 41 (C.A.), refd to. [para. 28].

Edmonton (City) v. Westinghouse Canada Inc. et al. (2000), 250 A.R. 385; 213 W.A.C. 385 (C.A.), refd to. [para. 40].

Lenza v. Alberta Motor Association Insurance Co. (1990), 74 Alta. L.R.(2d) 218; 42 C.P.C.(2d) 32 (C.A.), refd to. [para. 40].

Chalinor v. Brown (1988), 90 A.R. 28; 61 Alta. L.R.(2d) 145 (Q.B.), affd. (1989), 98 A.R. 225; 69 Alta. L.R.(2d) 88 (C.A.), refd to. [paras. 40, 153].

Lowe v. Larue, [2000] 4 W.W.R. 197; 250 A.R. 220; 213 W.A.C. 220; 76 Alta. L.R.(3d) 9 (C.A.), refd to. [para. 40].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al., [1999] 8 W.W.R. 222; 228 A.R. 201; 188 W.A.C. 201; 69 Alta. L.R.(3d) 265 (C.A.), refd to. [para. 40].

Hutchinson v. Hutchinson, [1999] A.R. Uned. 168 (C.A.), refd to. [para. 40].

Tat v. Ellis et al. (1999), 228 A.R. 263; 188 W.A.C. 263 (C.A.), refd to. [para. 40].

Robb Estate et al. v. St. Joseph's Health Care Centre et al. (1999), 87 O.T.C. 290; 34 C.P.C.(4th) 133 (Gen. Div.), refd to. [para. 42].

Schuttler v. Anderson (1999), 243 A.R. 109 (Q.B.), refd to. [para. 43].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2000), 262 A.R. 215; 81 Alta. L.R.(3d) 301 (Q.B.), refd to. [para. 43].

Wilson v. Walton et al. (No. 1) (1987), 79 A.R. 97; 51 Alta. L.R.(2d) 308 (Q.B.), refd to. [para. 43].

Corkum v. Sawatsky et al. (1993), 118 N.S.R.(2d) 137; 327 A.P.R. 137 (T.D.), varied (1993), 126 N.S.R.(2d) 317; 352 A.P.R. 317 (C.A.), refd to. [para. 43].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer), [1994] 9 W.W.R. 413; 159 A.R. 173; 21 Alta. L.R.(3d) 389; 28 C.P.C.(3d) 362 (Q.B.), folld. [para. 54].

Sherstone v. Westroc Industries Ltd. et al., [2000] 11 W.W.R. 726; 269 A.R. 278; 84 Alta. L.R.(3d) 375 (Q.B.), not folld. [para. 54].

Babyn et al. v. Patel (1998), 239 A.R. 377 (Q.B.), refd to. [para. 65].

Kirkup v. British Railways Engineering Ltd., [1983] 3 All E.R. 147 (C.A.), refd to. [para. 66].

Dushynski v. Rumsey (2001), 295 A.R. 309 (Q.B.), refd to. [para. 97].

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. 97].

Chilton v. Co-Operators General Insurance Co., [1993] O.J. No. 1754 (Gen. Div.), revd. (1997), 97 O.A.C. 369; 32 O.R.(3d) 161; 143 D.L.R.(4th) 647 (C.A.), refd to. [para. 103].

Kreller (Guardian ad litem of) v. Scholten, [2000] B.C.J. No. 1485, refd to. [para. 103].

Green v. Wilson, [1998] B.C.T.C. Uned. 58 (S.C.), refd to. [para. 103].

Timmer v. Euren et al., [1999] A.J. No. 1413, refd to. [para. 103].

Olson et al. v. General Accident Assurance Co. of Canada (1998), 218 A.R. 310 (Q.B.), varied (2001), 281 A.R. 327; 248 W.A.C. 327 (C.A.), refd to. [para. 103].

Harpe v. Aikenhead (1995), 30 Alta. L.R.(3d) 323 (Q.B.), refd to. [para. 103].

Baker v. O'Hanley (2001), 191 N.S.R.(2d) 179; 596 A.P.R. 179 (S.C.), refd to. [para. 104].

McLaren v. Schwalbe (1994), 148 A.R. 1; 16 Alta. L.R.(3d) 108 (Q.B.), refd to. [para. 147].

Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), refd to. [para. 152].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 153].

Statutes Noticed:

Rules of Court (Alta.), rule 218.1 [para. 34 et seq.].

Authors and Works Noticed:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.), generally [para. 93].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 415, 416, 417 [para. 153].

McAra, Personal Injury Damages in Alberta, generally [para. 104].

Counsel:

Robert G. McVey, Q.C. (Kay, Shipley, McVey & Smith), for the plaintiff;

Nancy E. Cumming (Bryan & Company), for the defendant.

Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, heard this action at Edmonton, Alberta, on September 10, 2001, and delivered the following judgment on October 25, 2001.