Waskul v. Cardinall, (1987) 82 A.R. 161 (QB)

• Judge: Andrekson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 18, 1987
• Citations: (1987), 82 A.R. 161 (QB)

Waskul v. Cardinall (1987), 82 A.R. 161 (QB)

MLB headnote and full text

Robert Waskul v. Larry Cardinall

(No. 8503 06398)

Indexed As: Waskul v. Cardinall

Alberta Court of Queen's Bench

Judicial District of Edmonton

Andrekson, J.

September 18, 1987.

Summary:

Waskul and Cardinall spent the day drinking together. Cardinall was driving Waskul's motor vehicle when they struck two light standards and suffered personal injuries. Waskul brought a negligence action for damages. Cardinall pleaded volenti non fit injuria.

The Alberta Court of Queen's Bench allowed the action. The court held that Cardinall was driving without the express or implied consent of Waskul, therefore there was no voluntary assumption of the risk. The court held that res ipsa loquitur applied to infer gross negligence, absent a reasonable explanation by Cardinall as to the cause of the accident.

Damage Awards - Topic 68

Injury and death - Body injuries - Back - Vertebral fracture - Young adult male suffered an undisplaced fracture of the second cervical vertebra - No permanent injury - Suffered eight months of pain - Wore cervical collars and underwent physiotherapy - Vertebra more susceptible to future damage because of weakening - The Alberta Court of Queen's Bench awarded $20,000.00 general damages for nonpecuniary loss - See paragraphs 42 to 45.

Torts - Topic 166

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - Inference of gross negligence - The Alberta Court of Queen's Bench held that res ipsa loquitur applied to determine whether or not there was gross negligence in a motor vehicle accident, provided the facts afford reasonable evidence, in the absence of evidence by the defendant, that the accident arose as a result of a very marked departure from the standards by which responsible and competent drivers govern themselves - See paragraph 38.

Torts - Topic 328

Negligence - Motor vehicle - Gratuitous passengers - Gross negligence - What constitutes - A grossly intoxicated driver left the highway and struck two light standards - There was no reasonable explanation for losing control of the car - The Alberta Court of Queen's Bench applied the doctrine of res ipsa loquitur to find the driver grossly negligent, because his driving constituted a "marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves" - See paragraphs 28 to 41.

Torts - Topic 6726

Defences - Consent - Assumption of risk - Implied consent - Motor vehicle passenger - Waskul and Cardinall had been drinking together throughout the day - Waskul fell asleep in the passenger side of his car while visiting a friend - Cardinall drove off with the car and had an accident - Waskul sued Cardinall for damages for personal injuries - The Alberta Court of Queen's Bench held that the defence of volenti non fit injuria did not apply, because Cardinall was not driving with the express or implied consent of Waskul, therefore there was no voluntary assumption of the risk - See paragraphs 31 and 32.

Cases Noticed:

McCulloch v. Murray, [1942] S.C.R. 141, appld. [para. 34].

Walker v. Coates et al., 64 W.W.R.(N.S.) 449, appld. [para. 37].

Statutes Noticed:

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 180(1) [para. 28]; sect. 182(1)(a) [para. 29]; sect. 182(3) [para. 30].

Counsel:

Stuart G. Baker, for the plaintiff;

Alan Covey, for the defendant.

This action was heard before Andrekson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on September 18, 1987.