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1951 CarswellAlta 35, 2 W.W.R. (N.S.) 336
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C

1951 CarswellAlta 35, 2 W.W.R. (N.S.) 336

Block v. Martin

Block v. Martin

Alberta Supreme Court

H. J. Macdonald, J.

Judgment: May 26, 1951
Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.

Counsel: J. C. Mahaffy, K.C., and R. H. Barron, for plaintiff.

R. L. Fenerty, K.C., for defendant.

Subject: Public; Torts

Automobiles Running Down of Pedestrian at Intersection Failure to Give Him Right-of-Way Vehicles and
Highway Traffic Act, S. 59 (2).

The running-down of the plaintiff by the defendant's car when the plaintiff was walking in the pedestrians' lane at a
street intersection held to have resulted solely from the failure of the defendant to yield the plaintiff the right-of-way,
which was given him by sec. 59 (2) of The Vehicles and Highway Traffic Act, RSA, 1942, ch. 275.

Damages Remoteness of Personal Injuries Aggravation of Existing Injury by Supervening Cause Distin-
guished from Incapacity Attributable to New Cause Measure of Damages.

"An existing incapacity 'results from' an original injury if it follows, and is caused by, that injury, and may properly be
held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the
period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has in-
tervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new
cause and not from the original injury, even though, but for the original injury, there would have been no incapacity.
Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circum-


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stances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from
the original injury. This is so even if the negligence or inefficient treatment consists of an error of omission whereby
the original incapacity is prolonged:" Rothwell v. Caverswall Stone Co., 113 L.J.K.B. 521, at 536; [1944] 2 All ER
350, at 361, quoted with approval in Hogan v. Bentinck West Hartley Collieries Ltd., [1949] LJR 865, [1949] 1 All
E.R. 588.

The plaintiff prior to being struck on the leg by defendant's car suffered from Paget's disease which caused softening of
the bones. An X-ray taken of his legs a month later showed a slight fracture of the thigh bone but he was not informed
by his doctor that it did, nor when he was later examined by a doctor selected by the defendant. He was able to walk
around until when fishing more than five months later his foot turned and he felt a snap in the leg about where it had
been hit by the car. A complete fracture was then found which confined the plaintiff to hospital for over two months.

Held, in the light of all the evidence, that the later fracture was not a supervening event which broke the chain of
causation but an extension of the original fracture which would not have occurred if the original fracture had become
healed. The plaintiff's walking around and going on the fishing trip were not, in the circumstances, unreasonable.

Duce v. Rourke; Pearce v. Rourke (1951) 1 W.W.R. (NS) 305 (Alta.), referred to.

In assessing damages the principles set forth by Ewing, J. (later J.A.) in Battagin v. Bird, [1937] 1 W.W.R. 718, af-
firmed [1937] 2 W.W.R. 365 (Alta. App. Div.) and again [1938] S.C.R. 70, 2 Abr Con 2197, were followed.

H. J . Macdonald, J .:

1 In Calgary, on February 9, 1948, at about 10 a.m., the plaintiff was walking southerly in the easterly pedestrian
lane at the intersection of 8th Avenue and 2nd Street West. Visibility was good but, due to weather conditions, the
crosswalk was icy. The plaintiff was 63 years old. On account of his physical condition he was walking slowly, using
a cane. He was within three to four feet of the southerly sidewalk when he was struck and knocked down by an au-
tomobile driven by the defendant, who had come from the south on 2nd Street West and was turning east on 8th
Avenue.

2 The plaintiff was struck in the region of his right hip by the right fender of the defendant's car. The defendant did
not see the plaintiff until the moment of impact, nor did the plaintiff see the approach of the defendant's automobile
until it was, as he expressed it, "right on me."

3 The Vehicles and Highway Traffic Act, RSA, 1942, ch. 275, sec. 59 (2), states:

The operator of a vehicle or street railway car shall yield the right-of-way to a pedestrian crossing the roadway
upon or within any crossing at an intersection except at intersections where the movement of traffic is regulated
by a police officer or traffic control signal, or at any point where a pedestrian tunnel or overhead crossing has been
provided. This provision shall not relieve the pedestrian from the duty of exercising due care for his safety.



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4 It was the duty of the defendant to yield the right-of-way to the plaintiff in accordance with the requirements of
sec. 59 (2), supra. The defendant failed in that duty. Under the circumstances that existed, I think that the plaintiff was
exercising due care for his own safety. He had looked before he commenced to cross and he saw no traffic. By reason
of his disability he was walking slowly and using a cane. On account of the icy condition of the crosswalk his difficulty
in walking would be substantially increased. But the plaintiff, even though he was walking slowly, had a right to walk
where he did. It was the duty of the defendant to see the plaintiff for the plaintiff was clearly visible.

5 The plaintiff was within three or four feet of the curb when he was struck by the defendant's car, so he had
crossed in safety practically the entire width of the street. I think that the accident was caused solely by the negligence
of the defendant and I do not think that the plaintiff was guilty of contributory negligence.

6 The defendant's car was going at a slow rate of speed, so immediately after the impact he stopped his automobile
and proffered assistance to the plaintiff. The plaintiff, however, was able to walk from the scene of the accident to his
business establishment approximately a block away.

7 At his establishment the plaintiff felt pain in the region of his leg where he was struck, so he called in a physician
who prescribed physiotherapy treatment. Such treatment seemed to ease the muscles in the area where the pain was,
enabling the plaintiff to walk around. However, the plaintiff's injured leg kept bothering him and occasionally when he
would strike his foot against an object he would feel a sharp pain in the injured region of his leg.

8 On March 9, on instructions of his doctor, he had an X-ray of the injured leg. From March 9 to August 18, he
suffered no further injury but he continued to feel pain in his upper right leg when he put his weight on his foot in
walking.

9 The plaintiff is an ardent fisherman. On August 18 he went out fishing near Carseland, Alberta. While walking
over a spot that was covered with water about six inches deep, his right foot slipped to the side in a rotating movement
to the right and his foot turned on its heel. As his foot turned, he felt a snap in the region of his leg where he had been
hit by the car. He then fell forward and could not get up.

10 An ambulance was called to take the plaintiff to the hospital. He was then attended by a doctor. It was found
that there was a complete fracture of the upper shaft of the femur of the right leg. This fracture necessitated a bone
reduction, with plates attached to the bone. The plaintiff was in the hospital until October 28 and during a substantial
portion of that time he was immobilized, with the leg in traction. The plaintiff undoubtedly suffered much pain and
discomfort during that period.

11 The plaintiff had for some years suffered from a disease known as Paget's disease. According to the medical
testimony adduced at trial, the cause or causes of such disease are unknown. The disease affects different bones,
varying with the individual. A softening takes place in a bone and in the softening or healing the bone may bend. With
the healing process an overgrowth in the bone affected may take place, causing a bowing of such bone. In the plain-
tiff's case, his arms and legs had been bowed by such disease, previous to the accident. His left leg was bowed to such
an extent that he required a brace on that leg.



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12 Much of the evidence adduced at trial was in relation to the interpretation of the X-ray plate taken of the
plaintiff on March 9 and various X-ray plates of the plaintiff taken following the complete fracture of August 18. The
X-ray plate of March 9 shows a small fracture of the right thigh bone of the plaintiff. I am satisfied on the evidence that
this fracture was caused by the impact with the defendant's automobile on February 9. However, the plaintiff was not
advised by his attending physician that the X-ray plate of March 9 showed a fracture.

13 On April 16, 1948, the plaintiff, at the defendant's request and for the purpose of a medical examination,
attended at the office of a medical practitioner selected by the defendant. That doctor neither had the plaintiff X-rayed,
nor did he see the X-ray plate of March 9. In cross-examination that doctor states in part as follows referring to his
examination of the plaintiff:

Q. So the only time that you saw him as far as you can recall from February 9th until the present time I suppose
was April 16th? A. Yes, April 16th.

Q. Now, did he tell you who was looking after him medically? A. I should think that he probably did, although I
have no note to that effect on my card.

Q. Have you any note on your card dealing with the inquiries that you made about the X-ray plate, Exhibit No. 8?
A. Yes, I have a note here, 'Was X-ray 2 or 3 weeks after his accident, but no definite report of anything broken.'

Q. And you accepted the What was it a telephone information that you had on that? A. That I can't re member
whether it was a direct communication or whether it was a telephone communication.

Q. Now, did Peter Block visit you at your office, doctor, on that occasion? A. Yes.

Q. He walked, as far as you know, to your office, into your office? A. He walked into it, but whether he walked
there or not, I don't know.

Q. And he walked out of the office? A. That is right, sir.

Q. And he complained of this throbbing in his right lower thigh? A. My notes say, 'Throbbing lower right upper
thigh.'

Q. To what then do you attribute the pain of which lie complains at that time? That is April 16th? A. Well, it is not
uncommon for patients with Paget's disease to complain of pain, particularly pain in the legs. I will go further than
that, it is common for them to.

Q. So that this man may have had a lot of pain all through the summer and thought it was just Paget's disease? A.
I think it is possible.

14 It would seem from the evidence that the plaintiff would be able to walk around, as indeed he did, following the


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accident of February 9 with the fracture as disclosed by the X-ray of March 9 in existence. The real point in issue,
respecting the interpretation of the X-ray plates, is whether the fracture as shown on the X-ray plate of March 9 was in
an unhealed condition on August 18 and, further, assuming that the fracture as shown on the X-ray plates of March 9
was in existence on August 18, whether the fracture of August 18 was related to the earlier fracture.

15 It is contended by the defendant that the greater proportion of the plaintiff's injuries and resulting damages
were caused by the accident in August, 1948, and not to the original accident in February, 1948. In other words, the
contention is that there was an intervention of a novus actus which broke the chain of causation. In Duce v. Rourke;
Pearce v. Rourke (1951) 1 W.W.R. (NS) 305, Egbert, J. has made an excellent summary of the English and Canadian
authorities of the last 30, years on the question of remoteness of damage.

16 In Hogan v. Bentinck West Hartley Collieries Ltd., [1949] LJR 865, [1949] 1 All E.R. 588, the House of Lords
decided the meaning to be given to the expression "where ... incapacity to work results from the injury," as found in the
Workmen's Compensation Act, 1925, ch. 84. Lord Simonds states at p. 592:

I do not propose again to review the cases, for in the judgment of du Parcq, L.J. [in Rothwell v. Caverswall Stone
Co., 113 L.J.K.B. 521, (1944) 2 All ER 350] I find so lucid and accurate a summary of the result of them that I will
respectfully adopt and repeat it. Du Parcq, L.J. said ([19441 2 All ER at 365):

'In my opinion, the following propositions may be formulated upon the authorities as they stand: First, an existing
incapacity "results from" the original injury if it follows, and is caused by, that injury, and may properly be held so
to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period
of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has inter-
vened and ought no longer to be attributed to the original injury, it may properly be held to result from the new
cause and not from the original injury, even though, but for the original injury, there would have been no inca-
pacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the
circumstances may justify a finding of fact that the existing incapacity results from the new cause, and does not
result from the original injury. This is so even if the negligence or inefficient treatment consists of an error of
omission whereby the original incapacity is prolonged.'

17 And at p. 593:

The question whether a present state of incapacity is substantially the result of an original accident or of the later
negligent act of a doctor is to ask, in other words, whether the present incapacity is due to the original accident or
to the intervention of a novus actus which breaks 'the chain of causation,' and the question can only be answered
on a consideration of all the circumstances and, in particular, of the quality of that later act or event.

18 And Lord Normand states at p. 595:

A question of causation is a question of fact, and it is none the less a question of fact though a finding that a partic
ular event is the cause of another event, or of a particular condition of things, must involve the selection of the
particular event as the cause out of the total complex of events and conditions which are necessary to the pro-


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duction of the given result and the treatment of the rest as a background which is practically irrelevant. It is thus
that we proceed in ordinary practical affairs, and is thus that an arbitrator must also proceed in deciding a question
of causation.

19 It is my view that the accident of August, 1948, did not supersede the accident of February. The events of
August 18 were an aggravation of an existing condition and not a supervening event to break the chain of causation.

20 I find on the evidence that the fracture in existence on March 9 had not healed on August 18 and that the
fracture of August 18 was an extension of precisely the same fracture sustained by the plaintiff on February 9. The
existence of the unhealed fracture on August 18 was a definite, contributing, predisposing cause of the complete
fracture of August 18.

21 I accept the evidence of the plaintiff as to the manner in which the aggravated fracture occurred on August 18.
I do not think that the fracture of August 18 would have occurred unless the fracture of February 9 was still unhealed.

22 I am not overlooking the fact that the plaintiff walked around following the accident of February 9, when he
must have sustained a fracture of the thigh bone, a fracture shown on the X-ray plate of March 9. The plaintiff's doctor
failed to advise the plaintiff of such fracture. However, the plaintiff submitted himself for an examination in April of
the same year to a doctor selected by the defendant, and who is a doctor of very high qualifications. That latter doctor
neither had additional X-rays taken of the plaintiff's injured leg nor did he see the plate of March 9. It is obvious that
such doctor did not consider the possibility of a fracture. Were it not for the existence of Paget's disease, the pain that
the plaintiff suffered from time to time in the injured leg might well have been sufficient warning to the plaintiff to
cause him to seek further medical opinion. But considering the existence of the disease with its associated pain, I do
not think that the plaintiff's actions in walking around, including his unfortunate fishing trip, were unreasonable.

23 The question of the assessment of damages presents some unusually difficult problems.

24 The plaintiff was and still is a partner in a dry-cleaning establishment. As a partner, previous to February 9,
1948, he was directly involved in supervising the output of the work. He also trained employees in spotting, pressing
and dry cleaning, and some of the work, such as blocking hats, he did himself. During the period from February 9 to
August 18, 1948, he went to the plant doing as much work as he could. From August 8, 1948, he was confined to his
home until the following New Year's Day. Then for an indeterminate period of some months, according to the evi-
dence, he used crutches, then a cane. During the whole of that intervening time to the trial, he went back to the plant
several times a week but has been able to do very little. As he puts it, "There is a steady pain as I stand up." Apparently
much of his work was done while standing up. However, it must not be overlooked that he is a sufferer from Paget's
disease.

25 The plaintiff is a partner with his brother-in-law in the cleaning establishment and during all of the period to the
date of trial he had received his salary and his full share of the partnership profits. It was suggested in evidence that by
reason of his failure to keep up his end of the work that there will be a different sharing of the partnership profits in
future. There was a suggestion that additional help may have been required; that lack of supervision added costs to the
production end of the business; that hats had to be sent out instead of being blocked by the plaintiff; that profits have


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been lost to the partnership by reason of the absence of the plaintiff. However, it is my view that the plaintiff has failed
to prove that the partnership has made less profit by reason of the absence of the plaintiff. As the plaintiff has regularly
received his salary and his share of the partnership profits up to the date of trial, I think that he has failed to prove any
loss of income as a result of the accident.

26 The principles to be followed for the assessment of damages are set forth by Ewing, J. [later J.A.] in Battagin v.
Bird, [1937] 1 W.W.R. 718, affirmed on appeal to the Appellate Division [1937] 2 W.W.R. 365, and on appeal to the
Supreme Court of Canada, [1938] S.C.R. 70.

27 Following such principles, I will allow damages as follows: All medical and hospital expenses; also the am-
bulance charges, all of which total $1,341.95. For general damages, there will be an award of $3,500.

28 Costs on column 5, Rule 738 not to apply on taxation.

END OF DOCUMENT