http://www.cuminggillespie.com

PEDESTRIAN-MOTOR VEHICLE COLLISIONS:
THE CURRENT STATE OF THE LAW IN ALBERTA

By James D. Cuming

A review of recent Alberta case law concerning pedestrian-motor vehicle collisions confirms that while these decisions are predominantly fact driven, questions of liability are typically determined employing a fairly well established method of analysis. This article identifies and summarizes the key components of the judicial analysis of most pedestrian-motor vehicle cases in Alberta.

Users of Alberta’s streets and highways are entitled to proceed on the assumption that other users of those streets and highways – including pedestrians – will observe traffic rules and regulations. Yet, as the authorities point out, rights are not absolute as between pedestrians and drivers. Each has a responsibility, grounded both in legislation and the common law, to observe due care both for their own safety and the safety of others. Where a pedestrian does not, they will generally be found to be at least partly responsible for any collision or injuries that result. (Segal, Manual of Motor Vehicle Law, 3^rd Edit., (Toronto: Carswell, 1982-), at pp. 10-54.5, 10-136, para. 144(d), 179(c); Mose v. Moeck, [2005] A.J. No. 830, at para. 24)

The correct approach to a determination of liability in a pedestrian-motor vehicle case, therefore, turns on the court’s interpretation and application of relevant legislative provisions, its assessment of the reasonableness of a litigant’s conduct in light of the common law duties of care to which she is subject, and its analysis of the specific circumstances giving rise to the accident in light of these statutory and common law requirements. (Rances v. Scaplen, [2008] A.J. No. 1323, at para. 228)

While each pedestrian-motor vehicle accident occurs in a specific way and thus can trigger the operation of one or more legislative provisions, the one most often invoked in such litigation is section 186 of Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6.

Section 186 (formerly section 180 of the Highway Traffic Act, R.S.A. 2000, c. H-8) mandates that the defendant driver prove lack of negligence for the accident on a balance of probabilities. This is a burden of disproof that applies until the end of the case and is not discharged by proof that the plaintiff pedestrian was negligent. (Bouchard Estate v. Chalifoux, [2004] A.J. No. 1453, at para. 50)

The nature of this reverse onus provision was summarized by Justice Adam Germaine in Meyer (Next Friend of) v. Neuman, [2004] A.J. No. 347, at para. 97-101:

“[The provision] creates a presumption which may be rebutted by the defendant. It is the defendant’s conduct that is under scrutiny. However, the presumption may be rebutted if a consideration of all the evidence demonstrates that the plaintiff, by his conduct, contributed in a material way to the accident, and the defendant could not have avoided it by exercise of reasonable care. The defendant does not have to prove himself to be blameless on a civil standard, only that he did not entirely cause the loss or damage. The assessment is to be based on the entire evidence, not by an examination of the evidence piecemeal, nor by assessing the plaintiff’s conduct first.”

So, how does a litigant establish that she observed due care both for her own safety and the safety of others and thus was not negligent (as a driver) or contributorily negligent (as a pedestrian)? The relatively limited number of recent decisions considering liability in a pedestrian-motor vehicle accident suggest that the following factors will be critical to the judicial analysis undertaken:

• Whether the driver was keeping a proper lookout in all the circumstances and whether the pedestrian met her obligation to look out for traffic and not to cross in the face of oncoming traffic (particularly if she was not in a crosswalk, at a corner or intersection or was crossing in an area where there were non-operational traffic signs). (H.C. v. Loo, [2006] A.J. No. 403, at para. 8; Barnes v. Smith, [2002] A.J. No. 110; aff’d, [2003] A.J. No. 452)
• Whether driver or pedestrian properly yielded the right of way and whether each met the duty to anticipate a reasonably apparent risk and take appropriate precautions. (Bouchard Estate v. Chalifoux, supra, at para. 50-52)
• Whether or not the pedestrian was in plain view of operators of motor vehicles proceeding on the roadway (ie. Was the pedestrian in a crosswalk, intersection, sidewalk, etc.? Was the pedestrian wearing dark or light colored clothing? Was the field of vision of either driver or pedestrian obstructed?) (Cooper v. Crockford, [2007] A.J. No. 986, at para. 38-55)
• Whether there were climatic or other conditions (ie. lighting, road design, vehicle defects, etc.) that might have impaired visibility or otherwise contributed to the collision.
• The time of day at which the accident occurred, the location of the collision, the speeds involved, and what, if any, traffic control devices were operating at the scene of the collision. (Bouchard Estate v. Chalifoux, supra, at para. 13)
• Whether alcohol, drugs or other type of impairment might have operated to deprive either driver or pedestrian of the ability to avoid the collision. (Cooper v. Crockford, supra, at para. 37, 41, 50)

In conclusion, the status of the law regarding pedestrian-motor vehicle collisions in Alberta remains in a constant state of evolution. As the above factors are taken into account, counsel and courts will work to continue to refine the law in this area.
END

James Cuming is the senior partner at Cuming, Gillespie & Raymaker. His practice consists of personal injury, class actions, and securities claims for Plaintiffs. James is also the current president of the Alberta Civil Trial Lawyers Association, and a Governor of the American Association for Justice.

Cuming, Gillespie & Raymaker are proud to announce that they have successfully resolved a claim for a couple who were struck in a head-on collision. The case, which was handled by James D. Cuming and Craig G. Gillespie, resolved through a Judicial Mediation after extensive litigation for the full amount of the Defendant’s insurance policy plus costs, plus a very significant contribution from the client’s own (SEF) Insurer. The couple were extremely happy with the hard fought resolution of the claim and the level at which it resolved.

James Cuming has published a personal injury paper entitled “Thinking Outside of the Box“.

Cuming, Gillespie & Raymaker are proud to announce that they successfully resolved a claim for a couple who were stuck head on in a collision for the full insurance policy limits of the Defendant driver. In addition to the full insurance policy limits of the Defendant driver, the clients’ own (SEF) Insurer also contributed a very significant sum to resolve the couples’ claims. This case, which was handled by James Cuming, was litigated for a number of years prior to a resolution through the dispute resolution process at the Alberta Court of Queen’s Bench. Our clients were extremely happy with the hard fought resolution of the claim and the maximum level at which it resolved.

James D. Cuming and Craig G. Gillespie of Cuming, Gillespie & Raymaker are very pleased to announce that in September of 2008 a claim for a young man who passed away as a result of a vehicle rollover was resolved for his Estate, his wife and his infant son. The matter resolved for a very significant (and confidential) sum. Cuming, Gillespie & Raymaker were very aggressive in their prosecution of the claim, having a resolution to all claims within 27 months of the incident.

James D. Cuming and Craig G. Gillespie of Cuming, Gillespie & Raymaker are very pleased to announce that in December, 2007, a claim for a motorcyclist who was struck by a left turning driver was resolved for a high six figure settlement. The motorcyclist suffered significant orthopedic and neurological injuries, and resolved very well from his significant injuries. Our client is currently employed with a voluntary organization and is able to assist others who have suffered significant loss and injury similar to his own. The matter was resolved through an independent mediation with the assistance of David Stark of Calgary as a mediator. We thank Mr. Stark for his commitment and involvement to the matter as well.

Cuming, Gillespie & Raymaker are proud to announce that they have successfully resolved a claim for a paraplegic woman who was struck in a crosswalk for the full insurance policy limits of the Defendant driver. The case, which was handled by James D. Cuming and Craig G. Gillespie, was resolved in 25 months from the date of the incident for the full amount of the Defendant’s insurance policy plus costs. The individual and her family were extremely happy with the expedient resolution of the claim and that level at which it resolved.

December 2007

The One Percent Rule Revisited

In Danek v. Calgary (City), 2007 ABQB 670 the Defendant City of Calgary took the position that the Administrator of the Motor Vehicle Accident Claims Act was responsible for paying a portion of a judgment where liability was joint. In short, the City took issue with the 1% Rule. The court disagreed with the City and confirmed that in cases involving multiple tortfeasors, the Administrator does not contribute if any other party is at least 1% liable. The Fund is a recovery source of last resort.

Master Hanebury

The Right to a Nominee during a Rule 217 Examination

In Nistor v. Kankolongo, 2007 ABQB 684 the Plaintiff wanted to have his own nominee present during a Rule 217 Psychological exam. The Defendant objected citing concerns that a third party nominee may negatively impact the quality of testing. The court disagreed with the Defendant and directed that the nominee be present. The court confirmed the principle that the Plaintiff’s right to have a nominee present is absolute.

M.B. Bielby

No Liability for a Municipality for Trees Near an Intersection

In Malmas Estate v. Mittelstadt, 2007 ABQB 648 the Defendants issued a Third Party Notice against the County of Wetaskiwin No. 10 for failing to erect signage at an uncontrolled intersection and for failing to clear trees that allegedly obscured the intersection. The County brought a motion for summary judgment on the grounds that section 533 of the Municipal Government Act provided a complete defence. The court agreed and held that a County cannot be liable for a decision not to control an intersection or for trees that might obscure the intersection. The principles of stare decisis should be followed.

S. Sanderman

Minor Soft Tissue Injures: British Columbia

In Dadson v. Gallo, [2007] B.C.J. No. 2215, the female plaintiff suffered a minor injury in a low impact collision. The plaintiff maintained that her injuries were acute for 6 months and generally symptomatic for 17 months. The court disagreed and held that the injuries “were resolved sometime within four to six months from the date of the accident.” The court was of the view that strain was no worse than Grade II and awarded $15,000.00 for general damages. The court also awarded loss of housekeeping of $3,000.00.

D. Satanove

Post Traumatic Stress Only: Damages for Nervous Shock

In Arnold v. Cartwright Estate, [2007] B.C.J. the male plaintiff attended at the scene of an accident and assisted with first aid on the victims, three of who died. Eleven months later the plaintiff suffered a panic attack and was diagnoses with post traumatic stress and bipolar disorder. The court awarded damages for the post traumatic stress finding that it was sufficiently connected to the accident. The court did not award damages for losses it determined flowed from the bi-polar disorder. For Post Traumatic Stress Disorder symptoms lasting 12 to 18 months the court awarded $10,000.00 for general damages.

G.B. Butler

Case Summaries Prepared by
Craig G. Gillespie
Cuming Gillespie & Raymaker
403-571-0555
cgillespie@cuminggillespie.com
www.cuminggillespie.com

*If you have interesting cases that you think should be summarized please email me the citation for review.

Multiple Injuries with Chronic Pain

In Park v. Heimbeckner, 2007 ABQB, 386 the 29 year old male plaintiff suffered serious injuries when he was ejected from a vehicle involved in a high speed collision on December 30th, 2001. The plaintiff suffered eight fractures to his cervical spine, a minor closed head injury, a broken right foot, a severe injury to his and a torn rotator cuff on his left shoulder. Additionally, the plaintiff suffered from a laceration on his scalp which required a skin graft and four surgical procedures. The court concluded that as a result of his injuries the plaintiff was in constant severe pain and suffered from bouts of depression and sexual dysfunction. For the significant injuries and ongoing chronic pain the court awarded $160,000.00 for general damages.

It should be noted that notwithstanding the seriousness of the injuries, the court did not award damages for loss of housekeeping and instead factored the amount into the general damages.

Mild to Moderate Soft Tissue Injury at Low Speed

In Gerlitz v. Lee, 2007 ABQB 495, the 25 year old male plaintiff was rear ended in August of 2001. The evidence suggested that there was minimal damage to either vehicle and that the speed of the defendant vehicle was around 4.5 km/h. The plaintiff suffered from neck pain and back pain after the collision. Notwithstanding treatment the plaintiff complained of ongoing back pain to the time of trial (6 years). The court concluded that collision caused a “whiplash type injury in the mild to moderate range” and awarded $35,000.00 in general damages.

It should be noted that at the time of the Collision the Plaintiff was a martial arts instructor. He claimed between $700,000 - $3,000,000.00 in loss of income and earning capacity as a result of his inability to run his business. The court accepted that loss of earning capacity can be proven on a simple probability basis however found no evidence to justify a large award. The court awarded $68,000.00 for loss of income.

Minor Brain Injury, Fractured Wrist and Moderate Soft Tissue Injuries

In Seich v. Tobin, 2007 ABQB 492 the 21 year old male plaintiff was injured when his motorcycle struck a van. Liability was in issue and apportioned equally. The court concluded that the plaintiff sustained a fractured wrist with ongoing impairment, moderate soft tissue injuries to his neck and back which lasted 3-4 years, and a mild brain injury that did not cause any long term deficits. The court awarded $80,000.00 in general damages and reduced the amount by half for liability. Again this award was inclusive of housekeeping damages.

Production of Medical Charts

In Prasad v. Weber, 2007 ABQB, the female plaintiff filed a claim alleging ongoing injuries to her neck, shoulders and back etc. The injuries were alleged to be permanent and ongoing – i.e. “chronic”. At discovery defence counsel requested a number of medical charts from the Alberta Statement of Benefits. The plaintiff refused on the basis that they were not relevant.

The Master directed the charts be produced and the Justice, on appeal, agreed. The court concluded that the starting point for relevancy and materiality was the pleadings. In this case, the pleadings alleged an ongoing “chronic” injury. The defence maintained that the injuries could have been caused by other sources. The court agreed that the “mere fact that a plaintiff puts their health into issue does not entitle a Defendant to review the Plaintiff’s entire medical history and to the medical chart records of any treating physician . . .” However, the court went on to say that when the Plaintiff “raised the issue of her severe and ongoing pain . . .” the records of any treatment provider that could disclose pain would be relevant. The court directed that the records be ordered and produced subject to any objections over relevance.

This decision seems to suggest that if the allegations are in the nature of an ongoing “chronic” injury the entire medical history may be relevant, and at the very least, needs to be canvassed. From a practice perspective, it appears that all records on the SOBP should be ordered and then reviewed for relevance.

Soft Tissue and TMJ Injury

In Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was t-boned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 in general damages and held that higher awards are for cases involving permanent partial disability or there is a long period of recovery or chronic pain. The court included loss of housekeeping in this general damages.

Case Summaries Prepared by
Craig G. Gillespie
McNally Cuming Raymaker
403-571-0555
cgillespie@mcnallycuming.com

*If you have interesting cases that you think should be summarized please email me the citation for review.

Suing the Wrongdoer – The Serious Personal Injury Lawsuit
Part IV of IV:

The final means to get compensation for loss of income is through a tort claim - bringing a lawsuit against the person who caused the injury and subsequent disability. A plaintiff can claim compensation in the form of general damages and special damages. General damages include damages for pain and suffering and loss of amenities of life, as well as damages for past loss of income, meaning the loss of income between the injury and trial, and future loss of income, as well as estimated costs of future care, and so on. Special damages can include damages for specific costs incurred as a result of the disability such as medical prescriptions, treatments, adaptive aids, etc.

Although the eventual outcome of a lawsuit can be quite positive, financially at least, lawsuits present their own headaches. They often take a long time to finalize and there can be significant costs along the way. Although many personal injury lawyers will offer contingency fee agreements to their clients, which generally provide for payment only after the case settles or is successful at trial, there are numerous other costs that must be paid along the way. Filing fees for court documents, payments to medical witnesses and other experts, photocopying of medical records, and so on. These up front costs can be quite a burden on a disabled individual who is already short on assets or income.

There is another problem: the risk of a costs order against an unsuccessful plaintiff. Costs are a reimbursement for the expense of bringing or defending an action. Typically costs follow the event. In simple terms, this means that the loser pays the winner’s costs. The Rules of Court contain a schedule through which costs are calculated for each step of a lawsuit. Although costs do not necessarily reflect the true and complete cost of bringing an action, they are still a significant burden to the loser of a lawsuit. The likelihood of having to pay costs will depend on the strength of the claim. In any lawsuit, the prospect of having to pay costs creates a risk - a risk that is often used by defendants to force you to settle early.

Another tactic frequently used to frighten plaintiffs into early settlement is the formal offer to settle. The Rules of Court have created a process whereby either side can make a formal offer to settle the action before trial. If the other side rejects the offer, and then does not better the offer at trial, they will owe double costs from the date of the offer up to the end of the trial. For example, a defendant offers to settle the plaintiff’s claim for $50,000. The plaintiff refuses and the matter goes to trial. At trial, the plaintiff loses. The plaintiff now owes the defendant double costs for every part of the action taken between the offer to settle and the trial. Even if the plaintiff wins, but gets less than the amount offered, let’s say $40,000, then the plaintiff owes costs to the defendant from the offer to settle all the way through trial even though the winner doesn’t usually pay costs.

The same rules apply in reverse, so the plaintiff has the option to play the same game. If the plaintiff makes a formal offer that the defendant refuses, and the plaintiff equals or betters that offer at trial, then the defendant is liable to pay the plaintiff double costs.
The Rules regarding double costs are meant to act as an incentive to early settlement. Unfortunately, the profound financial consequences associated with these Rules are sometimes used as a stick to force early settlement where the plaintiff is afraid of the potential consequences of proceeding in the face of a formal offer to settle.

The risks and financial problems just described apply to all litigation, whether it is an action against the person who hit you in a car accident or whether you are suing your disability insurance company for its denial of your disability claim.

The news is not all bad. Many plaintiffs are successful against insurance companies and against those who caused their injuries. A successful plaintiff will not only recover costs, but will win a damages award. The law requires that the court award damages as a lump sum, unless the parties agree otherwise. The trouble with a lump sum payment is that it leaves the plaintiff with the responsibility to manage and invest the funds to create a regular income stream for him or herself. Few plaintiffs are astute money managers, nor do they know how to find a suitable investment advisor. Furthermore, although the initial lump sum damages award is not taxable, the interest earned on the capital is taxable as investment income. To avoid some of these investment and taxation challenges, lawyers have come up with structured settlements.

A structured settlement is a voluntary agreement between the parties to the lawsuit whereby all or part of the damage award is paid out through periodic payments rather than through a lump sum. For example, there may be an initial lump sum payment to pay out the plaintiff’s mortgage, cover the cost of renovations to the home for ramps, or an elevator, or a main floor bedroom, or to cover the cost of adaptive aids and equipment such as a wheelchair or a special van, and perhaps provide funds for a much needed holiday. The remainder of the funds would then be structured through periodic payments, with perhaps some additional lump sum payments to cover replacement adaptive aids, and so forth. The arrangements range from simple to sophisticated depending on the needs of the parties. There are specialized firms in business doing nothing other than preparing structured settlements.

One of the main advantages to structured settlements is that the periodic payments are not taxable, just as the one-time lump sum payment of a damages award is not taxable. Another advantage is spendthrift protection. A structured settlement can protect a financially inexperienced plaintiff from losing a large portion of his settlement through inappropriate spending or vulnerability to pressure from family or friends. The settlement creates a guaranteed income stream for the disabled individual who needs this financial security. Structured settlements are a safe choice in that only federally registered life insurers can underwrite structured settlements.

According to an article in Canadian Lawyer, “the typical plaintiff seeking a structured settlement is a catastrophic victim, one who has future care needs and no prospect or limited prospects of income from employment or other sources during their lifetime.”

Structured settlements can also help a disabled individual retain their AISH benefits. In the case of a severe injury, a lump sum payment could put the AISH applicant over the $100,000 asset threshold. A structured settlement could be crafted to meet the specific needs of an AISH recipient. For example, a lump sum payment could be provided to pay out the mortgage on the home, since the principal residence is an exempt asset. Similarly, a lump sum payment could provide for a modified vehicle, another exempt asset. The remainder of the settlement could be structured in such a way to limit the impact on any AISH entitlement. The periodic payments will count as income in the month they are received. Depending on the amount of the payment, they might reduce the AISH benefits in the month they are received. They would not, however, impact overall AISH eligibility.

The main critique of structured settlements is that they do not provide the same rate of return that might be obtained through aggressive investment of a lump sum. In each case, the decision as to whether a structured settlement is worthwhile will depend on the specific needs and circumstances of the individual plaintiff. The earlier a structured settlement is considered, the better, as it can then be best planned to suit the plaintiff’s needs.

While it may seem that all is lost after someone suffers a disabling injury, there are in fact a number of ways in which the individual can recover, at least financially. Between a tort claims, disability insurance, or the government-sponsored support provided through AISH, disabled individuals who are no longer able to earn an income can find some form of income protection.