Ward v. Ward et al., (2010) 496 A.R. 42 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday October 15, 2010
• Citations: (2010), 496 A.R. 42 (QB);2010 ABQB 654

Ward v. Ward (2010), 496 A.R. 42 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. OC.114

Cory Ward by His Next Friend Gerald William Ward Jr. (plaintiff) v. Gerald William Ward and James Matthew Dixon (defendants)

(0403 05210)

James Dixon (plaintiff) v. Gerald William Ward (defendant)

(0403 05178; 2010 ABQB 654)

Indexed As: Ward v. Ward et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

October 15, 2010.

Summary:

In 2002, the 16 year old plaintiff was a passenger in a vehicle being driven by his father. As the father made a left hand turn at an intersection, his vehicle was struck by an oncoming vehicle driven by the defendant Dixon, who had the right of way. The plaintiff was seriously injured. The plaintiff brought a negligence action for damages against both his father and Dixon. Dixon brought a negligence action for damages against the father for his injuries. The actions were heard together.

The Alberta Court of Queen's Bench found the father negligent and 100% at fault for making a left hand turn when it was unsafe to do so. Dixon was not contributorily negligent. The court awarded $1,597,411.07 damages to the plaintiff and $31,621.93 damages to Dixon.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - In 2002, the 16 year old plaintiff suffered a severe brain injury, a fractured skull, jaw, shoulder, ribs, pelvis and other injuries - He spent 19 days in a coma and left the hospital with a severe disability - He managed a remarkable physical recovery, but still suffered significant cognitive deficits that limited his likelihood of finding and maintaining remunerative full time employment - Although the plaintiff currently worked for a family friend, that employment was not guaranteed and there was little likelihood of competitive employment other than as a labourer - The Alberta Court of Queen's Bench accepted that had the accident not occurred, the plaintiff would not likely have completed high school or any vocational training - Absent the accident, the plaintiff would have been expected to earn $32,000 per year to age 65 (present value of $777,920) - After the accident, he could be expected to earn the discounted amount of $145,860 - The court awarded $630,060 for lost future income, $30,000 for lost past income and $730,351.07 for future care and treatment, which included a $20,000 per year reduction for financial assistance currently available to the plaintiff under the provincial government's Persons with Developmental Disabilities Program notwithstanding that the future of such funding was uncertain - The court accepted that the plaintiff would need one full-time support worker for the rest of his life, although not on a 24/7 basis - The plaintiff was awarded $205,000 general damages for nonpecuniary loss (trilogy maximum was now $360,000) - See paragraphs 138 to 376.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - [See Damage Awards - Topic 102].

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 102].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 102].

Torts - Topic 439

Negligence - Motor vehicle - Rules of the road - Intersections - Turning left - Right of way - In 2002, the 16 year old plaintiff was a passenger in a vehicle being driven by his father - As the father made a left hand turn at an intersection, his vehicle was struck by an oncoming vehicle driven by the defendant Dixon - The Alberta Court of Queen's Bench found the father negligent for making an unsafe left hand turn - The issue was whether Dixon, as the dominant driver, was contributorily negligent for driving too fast for the road conditions (poor visibility due to heavy snow, fog and blowing snow) and for failing to keep a proper lookout - The plaintiff claimed that had Dixon been driving at a reasonable speed and paying attention, he could have avoided the collision - The court held that the plaintiff failed to rebut the presumption that the dominant driver (Dixon) was travelling at a reasonably safe speed and maintaining a proper lookout - All parties in the accident suffered injuries which affected their memories and left them with unreliable recollections of the details of the collision - The investigating police officer's investigation of the collision was woefully inadequate - No proper measurements were taken, etc. - Although two accident re-constructionists prepared reports and testified, their conclusions (accident could have been avoided had Dixon been driving slower) were unreliable because the poor data used to make the conclusions was based on assumptions and there were too many variables affecting the accuracy of their conclusions - Other witnesses, who might have assisted determining what happened, were not called to testify - The court held that the plaintiff failed to establish contributory negligence on Dixon's part - There was no evidence that he was not paying attention or was driving at an excessive speed for the road conditions - See paragraphs 1 to 135.

Torts - Topic 463

Negligence - Motor vehicle - Speed - Where reduced speed required - Poor or obstructed visibility - [See Torts - Topic 439].

Torts - Topic 552

Negligence - Motor vehicle - Evidence and burden of proof - Failure to avoid situation created by other driver - The Alberta Court of Queen's Bench stated that "in a collision between a dominant and servient driver, it is presumed that the dominant driver was not negligent. In order to rebut the presumption, the servient driver bears the onus of showing: 1) that the dominant driver was aware or reasonably should have been aware of the servient driver's disregard of the law, and 2) after becoming aware, or after a reasonably prudent driver should have become aware, the dominant driver had a reasonable opportunity to avoid the collision" - See paragraph 27.

Torts - Topic 561

Negligence - Motor vehicle - Evidence and burden of proof - Accident reconstruction by expert - [See Torts - Topic 439].

Torts - Topic 6610

Defences - Contributory negligence - Particular cases - Motor vehicle accidents - [See Torts - Topic 439].

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 22].

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. 22].

Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 25].

Vibert v. Stern et al. (1997), 225 A.R. 1 (Q.B.), refd to. [para. 26].

McElhatton v. Wales (2000), 255 A.R. 183; 220 W.A.C. 183; 2000 ABCA 94, refd to. [para. 30].

Au et al. v. Carnegie et al. (2003), 345 A.R. 50; 2003 ABQB 893, affd. (2005), 363 A.R. 118; 343 W.A.C. 118; 2005 ABCA 43, refd to. [para. 31].

King et al. v. Singh et al., [2002] A.R. Uned. 599 (Q.B.), affd. [2004] A.R. Uned. 58; 2004 ABCA 124, refd to. [para. 31].

Bond v. Mingo (1990), 108 A.R. 164 (Q.B.), refd to. [para. 32].

Seich v. Tobin, [2007] A.R. Uned. 410; 53 M.V.R.(5th) 94; 2007 ABQB 492, refd to. [para. 32].

Wittmeier v. Scholes (1998), 221 A.R. 165; 1998 ABQB 379, refd to. [para. 32].

Huculak v. Soprovitch, [2005] A.R. Uned. 117; 2005 ABQB 11, refd to. [para. 32].

Hanson v. Heuchert (1997), 197 A.R. 46 (Q.B.), refd to. [para. 32].

Haase v. Pedro (1970), 21 B.C.L.R.(2d) 273 (C.A.), affd. [1971] S.C.R. 669, refd to. [para. 33].

Rances v. Scaplen et al. (2008), 462 A.R. 1; 2008 ABQB 708, refd to. [para. 35].

Schmolzer v. Higenbottam et al., [2009] A.R. Uned. 595; 16 Alta. L.R.(5th) 352; 2009 ABQB 522, refd to. [para. 233].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 313].

O'Connor v. Mahabir et al. (1999), 243 A.R. 11; 1999 ABQB 326, revd. (2002), 293 A.R. 352; 257 W.A.C. 352; 2002 ABCA 13, refd to. [para. 315].

Boren v. Vancouver Resource Society for the Physically Disabled et al. (2003), 184 B.C.A.C. 210; 302 W.A.C. 210; 2003 BCCA 388, refd to. [para. 322].

Jones et al. v. Rostvig, [2003] B.C.T.C. Uned. 488; 17 C.C.L.T.(3d) 253; 2003 BCSC 1222, refd to. [para. 323].

Bosard v. Davey, [2006] 5 W.W.R. 320; 191 Man.R.(2d) 254; 2005 MBQB 80, refd to. [para. 323].

Preston et al. v. Chow et al., [2008] 3 W.W.R. 47; 224 Man.R.(2d) 39; 2007 MBQB 318, refd to. [para. 324].

Gerelus v. Lim et al. (2006), 206 Man.R.(2d) 241; 43 C.C.L.T.(3d) 256; 2006 MBQB 194, refd to. [para. 325].

McLeod v. Palardy (1981), 10 Man.R.(2d) 181 (C.A.), refd to. [para. 325].

Cherwoniak v. Walker (1999), 249 A.R. 74; 1999 ABQB 680, refd to. [para. 326].

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. 351].

H.C. v. Loo (2003), 403 A.R. 212; 2003 ABQB 52, revd. (2006), 384 A.R. 200; 367 W.A.C. 200; 2006 ABCA 99, refd to. [para. 356].

Bourbonnais v. Gauvreau (2003), 344 AR 110; 2003 ABQB 952, revd. (2005), 367 A.R. 31; 346 W.A.C. 31; 2005 ABCA 154, refd to. [para. 356].

Madge v. Meyer et al. (1999), 256 A.R. 201; 1999 ABQB 1017, affd. (2001), 281 A.R. 143; 248 W.A.C. 143; 2001 ABCA 97, refd to. [para. 356].

Johnston et al. v. Hader et al. (2009), 487 A.R. 101; 495 W.A.C. 101; 10 Alta. L.R.(5th) 299; 2009 ABQB 424, revd. (2010), 478 A.R. 343; 22 Alta. L.R.(5th) 353; 2010 ABCA 47, refd to. [para. 356].

Labrecque v. Heimbeckner et al. (2007), 434 A.R. 181; 2007 ABQB 501, refd to. [para. 356].

Huinink et al. v. Oxford (County) et al., [2008] O.T.C. Uned. 689 (Sup. Ct.), refd to. [para. 356].

Lee v. Dawson et al., [2003] B.C.T.C. 1012; 17 B.C.L.R.(4th) 80; 2003 BCSC 1012, affd. (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 267 D.L.R.(4th) 138; 2006 BCCA 159, leave to appeal refused (2006), 361 N.R. 391; 240 B.C.A.C. 319; 398 W.A.C. 319 (S.C.C.), refd to. [para. 356].

Crackel v. Miller et al. (2003), 342 A.R. 109; 2003 ABQB 781, refd to. [para. 373].

McIlveen v. McAdam et al. (2001), 241 N.B.R.(2d) 1; 625 A.P.R. 1; 2001 NBQB 89, revd. (2002), 252 N.B.R.(2d) 35; 658 A.P.R. 35; 2002 NBCA 55, refd to. [para. 373].

Naidu v. Mannand et al., [2007] B.C.T.C. Uned. E66; 53 C.C.L.T.(3d) 1; 2007 BCSC 1313, refd to. [para. 409].

Willeson et al. v. Calgary (City) et al., [2007] A.R. Uned. 258; 2007 ABQB 117, revd. [2008] A.R. Uned. 76; 2008 ABCA 197, refd to. [para. 409].

Teichgraber v. Gallant, 2003 ABQB 58, refd to. [para. 412].

Sra v. Zhu et al., [2007] A.R. Uned. 296; 2007 ABQB 426, refd to. [para. 412].

Pugsley v. Wong et al., [1999] A.R. Uned. 636; 1999 ABQB 921, refd to. [para. 412].

Johnson et al. v. Tan, [2004] A.R. Uned. 720; 2004 ABQB 470, refd to. [para. 412].

Counsel:

Howard K. Poon and Ben Wiebe  (Chadi  & Co.), for the plaintiff, Cory Ward;

Joseph Sheplawy, for the plaintiff, James Dixon;

Jerri Cairns (Parlee McLaws LLP), for the defendant, Gerald William Ward;

Sigurd Delblanc and Robert D. Mueller (Bryan & Co.), for the defendant, James Dixon.

This action was heard on October 19-22 and November 2-6, 2009, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 15, 2010.