Zacharuk v. Kitlarchuk and Sawiak, (1979) 18 A.R. 423 (QB)

• Judge: MacDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 01, 1979
• Citations: (1979), 18 A.R. 423 (QB)

Zacharuk v. Kitlarchuk (1979), 18 A.R. 423 (QB)

MLB headnote and full text

Zacharuk v. Kitlarchuk and Sawiak

Indexed As: Zacharuk v. Kitlarchuk and Sawiak

Alberta Court of Queen's Bench

Judicial District of Vegreville

MacDonald, J.

November 1, 1979.

Summary:

This case arose out of an action in negligence against the defendants. The defendant "K" asked the plaintiff and the defendant "S" to help him move farm equipment. The plaintiff was inexperienced in handling such equipment. The defendant "K" failed to give the plaintiff handling instructions. The defendant "S" was an experienced equipment operator. The defendant "S" activated a piece of equipment before he was given the safety signal. The plaintiff lost three fingers, because he had an improper hold on the activated unit.

The Alberta Court of Queen's Bench allowed the plaintiff's claim against the defendants and held that each was 50% at fault.

Damage Awards - Topic 34

Personal injuries and death - Arm injuries - Hand - Fingers - The 17 year old male plaintiff lost, from his dominant hand, his index, middle and ring fingers to the second knuckles - The Alberta Court of Queen's Bench awarded the plaintiff $16,000.00 general damages comprised of $2,000.00 for pain and suffering and $14,000.00 for permanent disability and loss of amenities of life - See paragraphs 1 and 37.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer and employee relationship - The defendant "K" asked the plaintiff to help him move farm machinery - The plaintiff, who was in experienced in handling machinery, was involved in an accident that severed three of his fingers - At the time of the accident the plaintiff was acting under "K's" instructions - The plaintiff brought an action in negligence against the defendant "K" - The Alberta Court of Queen's Bench allowed the plaintiff's claim and stated that a master-servant relationship existed between the plaintiff and "K", because "K" had the right to exercise control over the plaintiff's actions - See paragraphs 20 to 22.

Master and Servant - Topic 5666

Liability of master to servant - Negligence - Inadequate instructions - The defendant "K" asked the plaintiff to help him move farm machinery - The job involved handling a hydraulic ram - The plaintiff was inexperienced and the defendant "K" failed to properly instruct him in the use of the ram - An accident occurred in which the plaintiff lost three fingers - The plaintiff brought an action in negligence against the defendant "K" - The Alberta Court of Queen's Bench allowed the plaintiff's claim and held that the defendant "K" was 50% at fault for the accident - The Court of Queen's Bench stated that a master-servant relationship existed and the defendant "K" failed to carry out his duty to properly instruct the plaintiff on the handling of the ram - See paragraphs 23 to 26.

Torts - Topic 764

Negligence - Farming operations - Operation of equipment - The plaintiff and the defendant "S" were moving farm machinery - The plaintiff had an improper hold on a piece of the machinery - The defendant "S" set the machinery in motion before he was given the safety signal - Three of the plaintiff's fingers were crushed and severed in the machine - The plaintiff brought an action in negligence against the defendant "S" - The Alberta Court of Queen's Bench allowed the plaintiff's claim and held that the defendant "S" was 50% at fault - The Court of Queen's Bench stated that the defendant was negligent when he activated the machine, because he failed to make sure that it was safe and he failed to wait for the proper signal - See paragraph 24.

Torts - Topic 6652

Defences - Ultimate negligence - What constitutes last opportunity or ultimate negligence - The plaintiff was involved in an accident which resulted in the loss of three of his fingers - The defendant "K" asked the plaintiff to help him move farm equipment - The defendant "K" failed to properly instruct the plaintiff on the handling of the equipment - The defendant "S" was an experienced tractor operator, who was also helping the defendant "K" - The defendant "S" activated the machine while the plaintiff had an improper hold on it - The plaintiff's fingers were crushed by the machine - The plaintiff brought an action against both defendants for their negligence - The Alberta Court of Queen's Bench allowed the plaintiff's claim and held that each defendant was 50% at fault - The Court of Queen's Bench stated that the defendants acts were contemporaneous and therefore the doctrine of last clear chance did not apply - See paragraphs 27 to 34.

Cases Noticed:

Canadian Northern Railway Co. v. Anderson (1911), 45 S.C.R. 355, appld. [para. 16].

Wagon Mound No. 1, [1961] A.C. 388, appld. [para. 17].

R. v. Cote (1974), 51 D.L.R.(3d) 244, appld. [para. 18].

Abbott et al. v. Kasza et al., [1975] 3 W.W.R. 163, appld. [para. 18].

S.D. of Assiniboine South, No. 3 and Hoffer et al. v. Greater Winnipeg Gas Co. Ltd., [1975] 4 W.W.R. 746, appld. [para. 18].

Scott v. London and St. Katherine Docks Co., 159 E.R. 665, refd to. [para. 19].

Fleuty v. Orr (1906), 13 O.L.R. 59, appld. [para. 20].

Performing Right Society Ltd. v. Mitchell and Booker Ltd., [1924] 1 K.B. 762, refd to. [para. 21].

Paris v. Stepney Borough Council, [1951] 1 All E.R. 42 (H.L.), appld. [para. 23].

Cribb v. Kynoch Ltd., [1907] 1 K.B. 548, appld. [para. 24].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1970, c. 65, sect. 3(1), sect. 3(2) [para. 29]; 8 [para. 31].

Authors and Works Noticed:

Bowker, Ten More Years Under The Contributory Negligence Acts, U.B.C. Law Review, vol. 2, p. 198 [para. 33].

Counsel:

J. Bassie, for the plaintiff;

P. Chomicki, for the defendant William Kitlarchuk;

W.S. Sowa, for the defendant John Sawiak.

This case was heard before MacDONALD, J., of the Alberta Court of Queen's Bench, Judicial District of Vegreville.

On November 1, 1979, MacDONALD, J., delivered the following judgment: