December 1, 2007

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 403-571-0555 [email protected] www.cuminggillespie.com *If you have interesting cases that you think should be summarized please email me the citation for review.

This entry was posted on December 1, 2007


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