1999 CarswellOnt 3440
Ontario Superior Court of Justice
Jones v. Lavalley
1999 CarswellOnt 3440, [1999] O.J. No. 4054, 105 O.T.C. 227, 92 A.C.W.S. (3d) 58
Lynette Jones and Shawn Jones, an infant by his litigation guardian, Lynette Jones and Chad Jones an infant by his litigation guardian, Lynette Jones and Mitchell Jones, an infant by his litigation guardian, Lynette Jones and Evan Jones, an infant by his litigation guardian, Lynette Jones and Michael Lavalley and Gayle Jones
Thompson J.
Heard: June 30, 1999
Judgment: October 21, 1999
Docket: 3703/94

Counsel: Mr. Neil Arnold, for Plaintiffs.
Ms Mary Hewitt, for Defendants.
Subject: Torts; Civil Practice and Procedure; Public

Headnote

Negligence --- General principles — General
Plaintiff was injured on snowmobile owned and operated by defendant — Plaintiff brought action in negligence against defendant — Action allowed — It didn’t matter whether plaintiff was catapulted from snowmobile because it collided with car or because portion of her body struck mailbox post, defendant was negligent — Defendant either did not have proper care and control of his snowmobile and collided with parked car, or he was driving too close to mailbox which he knew or ought to have known would be located near roadway as this was rural area.
Negligence --- Defences — Volenti non fit injuria — Willing passengers — Knowledge and appreciation of risk
Plaintiff was injured on snowmobile owned and operated by defendant — Plaintiff brought action in negligence against defendant — Action allowed — Defendant testified, contrary to his sworn evidence at his examination for discovery that he was intoxicated while operating snowmobile — Court had no faith in accuracy of his testimony at trial — Such admission, some six years after accident, at trial where defence was volenti non fit injuria causes court to view his testimony with skepticism — Plaintiff testified that she did not believe defendant to be intoxicated by consumption of alcohol and that his driving did not reflect ability to operate snowmobile was impaired.
Negligence --- Contributory negligence — Proof of contributory negligence — Plaintiff’s knowledge of danger — Plaintiff as gratuitous passenger
Plaintiff was injured on snowmobile owned and operated by defendant — Plaintiff brought action in negligence against defendant — Action allowed — Nothing in evidence showed that plaintiff knew or ought to have known that she was placing herself in position of danger by riding on snowmobile with defendant — There was scant or no evidence that would give rise to finding that plaintiff knew or ought to have known that defendant’s ability to drive snowmobile was impaired prior to their departure for last snowmobile ride.
Damages --- Damages in tort — Personal injury — Claim by family member
Plaintiff was injured on snowmobile owned and operated by defendant — Plaintiff brought action in negligence against defendant — Action allowed — There was very little evidence as to how plaintiff’s injuries and subsequent medical difficulties impacted her children — The oldest child went missing shortly after accident, second oldest continued to reside with his grandmother, youngest child was placed in foster care and third eldest child returned to plaintiff’s residence approximately eight months after accident — Children’s Family Law Act claims were fixed as following: nil for eldest child, $1000 for second eldest child, $1000 for third eldest child and $500 for youngest child.
Damages --- Damages in tort — Personal injury — Principles relating to awards of general damages — Motor vehicle accidents — General
Plaintiff was injured on snowmobile owned and operated by defendant — Plaintiff brought action in negligence against defendant — Action allowed — Plaintiff suffered comminuted fracture of her right tibia and fibula — Her recovery was slow and infection was difficult to contain — Bone graft was performed and approximately 15 months post accident, plates and screws were surgically removed — Today she suffers occasional pain in her leg especially during weather changes or cold temperatures — Walking does not bother her but she complains of not being able to play baseball or hockey anymore — However her continued athletic endeavours in these fields must be viewed with observation that she was now 41 years of age — General damages were assessed in amount of $20,000.

Table of Authorities

Cases considered by The Honourable Mr. Justice R.M. Thompson:
Dubé v. Labar, 36 C.C.L.T. 105, [1986] 3 W.W.R. 750, 68 N.R. 91, 42 M.V.R. 1, [1986] 1 S.C.R. 649, 2 B.C.L.R. (2d) 273, 1 Y.R. 81, 27 D.L.R. (4th) 653 (S.C.C.) — applied
Statutes considered:
Family Law Act, R.S.O. 1990, c. F.3
Generally — considered
ACTION by plaintiff for damages for negligence against defendant driver of snowmobile of which plaintiff was passenger.

The Honourable Mr. Justice R.M. Thompson:

1      On January 1, 1993, the plaintiff Lynette Jones was a passenger on a snowmobile owned and operated by the defendant, Michael Lavalley. An accident occurred which resulted in Ms. Jones being injured.

Issues

2          
1. Was the defendant negligent?
2. Is the defence of volenti non fit injuria available?
3. Was the plaintiff contributorily negligent?
4. Should the plaintiff’s children receive compensation pursuant to the Family Law Act and if so in what amount?
5. Quantum of damages for the plaintiff?

Finding of Facts and Conclusions

1. Was the defendant negligent? Yes.

3      The plaintiff while riding as a passenger seated behind the defendant on his snowmobile, was suddenly knocked off the snowmobile. The plaintiff testified that a part of her body struck something and she flew off the snowmobile. This occurred between 1:00 a.m. and 2:00 a.m. The plaintiff doesn’t know what her body struck causing her to be thrown from the sled. The defendant testified that a part of the plaintiff’s body struck the post of a mailbox located near the shoulder of the road. He testified that after the plaintiff was knocked off the snowmobile, he collided with a parked motor vehicle which vehicle was parked near the roadside. He said he came into collision with the rear corner of the car on the driver’s side. Charles Jones, the investigating officer from Cape Croker police testified that he observed snowmobile tracks on the snow-covered roadway which zigzagged from one side of the road to the other, leading up to the point of collision with the parked vehicle. He observed the point of impact to be on the passenger side left front fender. He came to the conclusion, upon observing the tracks and skid marks, that the driver of the snowmobile had tried to take evasive action to miss the motor vehicle but was unsuccessful. He testified that upon his arrival at the scene he had no difficulty in seeing the parked car from 50 yards away.

4      It is difficult to determine whether the plaintiff was catapulted from the snowmobile because it collided with the car or because a portion of her body struck the mailbox post. It really doesn’t matter because under either scenario the defendant was negligent. He either did not have proper care and control of his snowmobile and collided with the parked car, or he was driving too close to the mailbox which he knew or ought to have known would be located near the roadway as this was a rural area. If I were to pick the more probable scenario, the first scenario is the more probable.

2. Is the defence of volenti non fit injuria available? No.

5      Estey J. in Dubé v Labar (1986), 27 D.L.R. (4th) 653 (S.C.C.) stated:
The defence of volenti will, furthermore, necessarily be inapplicable in the great majority of drunken driver - willing passenger cases. It requires an awareness of the circumstances and the consequences of action that are rarely present on the facts of such cases at the relevant time.
The facts must clearly show that the plaintiff, knowing the circumstances and knowing of the virtual certainly of the risk of harm, bargains away their right to sue for damages for injuries received as a result of the defendant’s negligence.

6      Such facts are not in existence in this matter. The defendant testified, contrary to his sworn evidence at his examination for discovery, that he was intoxicated while operating the snowmobile. I have no faith in the accuracy of his testimony at trial. Such an admission, some six years after the accident, at trial where his defence is volenti, causes me to view his testimony with skepticism. The plaintiff testified that she did not believe the defendant to be intoxicated by the consumption of alcohol and that his driving did not reflect that his ability to operate the snowmobile was impaired. It was not until the later stages of the snowmobile ride that the defendant acted out of norm.

3. Was the plaintiff contributorily negligent? No.

7      Between 7:00 and 8:00 p.m., January 13, 1993, and 1:00 and 2:00 a.m. January 14, 1993, the evidence would seem to indicate that the plaintiff and defendant consumed in the neighbourhood of four beer and consumed a couple of joints of marihuana. The evidence would seem to indicate that the majority of beer was consumed early in the evening, as was the marihuana.

8      Nothing in the evidence convinces me that the plaintiff knew or ought to have known that she was placing herself in a position of danger by riding on the snowmobile with the defendant.

9      There was scant or no evidence before me (which I accepted as credible), that would give rise to a finding that the plaintiff knew or ought to have known that the defendant’s ability to drive the snowmobile was impaired prior to their departure for the last snowmobile ride. There was evidence that, on a prior ride, the plaintiff felt that the defendant was “high” from the consumption of marihuana but no credible evidence that this was the situation on the last ride of the evening. The evidence was that a period of approximately one hour separated these rides.

4. Do the plaintiff’s children have a sustainable claim under The Family Law Act?

A. Partially.

10      The plaintiff has four children. At the time of the accident none of the children resided with the plaintiff. For reasons I was not advised of, the children were apparently living with the plaintiff’s mother. Shortly after the motor vehicle accident, the eldest child went missing. He hasn’t been heard of since. The second eldest son, Chad, has continued to reside with his grandmother. The youngest child was placed in and remains under foster care. The third eldest child returned to the plaintiff’s residence approximately eight months after the accident and remains there at this time.

11      I have very little evidence as to how the plaintiff’s injuries and subsequent medical difficulties impacted the children.

12      With little evidence to guide me, I fix the children’s Family Law Act claims as follows (in order of their ages):
1.	Shawn Jones (eldest)	Nil	
2.	Chad Jones	$1,000.00	
3.	Mitchell Jones	$1,000.00	
4.	Evan Jones	$ 500.00	

5. Quantum of plaintiff’s damages. General damages - $20,000.00 Special damages - Nil

13      As a result of being thrown from the snowmobile, the plaintiff suffered a comminuted fracture of her right tibia and fibula. She underwent an open reduction on January 15, 1993 and her leg was placed in a cast. She failed to heal normally - the fracture site became infected. The bones failed to knit properly and the wound would not heal. As a result, a bone graft was performed on May 25, 1993. This did not resolve the plaintiff’s difficulties. Her recovery was slow and despite her doctor’s efforts, the infection was difficult to contain. The plaintiff continued to suffer pain and the loss of the normal amenities of life.

14      The plaintiff made slow progress after the bone graft. By the end of March or the beginning of April 1994, she no longer required a cane or crutch to assist her. On April 8, 1994, (approximately 15 months post-accident), the plates and screws were surgically removed. Notwithstanding this procedure her pain, albeit lessened, continued. She continued to have difficulties with infection at the surgical site. Her condition gradually improved. Today she suffers occasional pain in her leg especially during weather changes or cold temperatures. During the warmer months she is essentially without major complaint.

15      There is not an overabundance of evidence as to how this injury has affected the plaintiff in her day-to-day life. She no longer limps. Walking does not bother her. She complains of not being able to play baseball or hockey anymore but her continued athletic endeavours in these fields must be viewed with the observation that she is now 41 years of age.

16      I assess general damages in the amount of $20,000. There is no claim for special damages nor any claim for lost wages or future loss of income.

17      If the parties cannot agree on prejudgment interest or costs, I may be spoken to on these matters.

Action allowed.
 	
End of Document	Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.