Behiels v Swanson, 2016 ABQB 573

Court of Queen’s Bench of Alberta Citation: Behiels v Swanson, 2016 ABQB 573 Date: 20161012 Docket: 1101 17367, 1101 17368 Registry: Calgary Between: Wayne Behiels and Lease Plus Financial Plaintiffs - and - James Swanson Defendant And Between: Action No. 1101 17368 Gladys Behiels Plaintiffs - and - James Swanson Defendant Corrected judgment: A corrigendum was issued on November 22, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiffs Wayne Behiels and Gladys Behiels were injured when their automobile, driven by Wayne Behiels, was in a collision with an automobile driven by the defendant James Swanson. They each commenced an action against Mr. Swanson to recover damages from him. Their actions have since been consolidated. [ 2 ] The collision occurred when Mr. Swanson drove his automobile southbound on the northbound lanes of Deerfoot Trail. [ 3 ] Mr.

Swanson denies liability for the accident on the basis that his driving error was caused by a medical condition, HSV Encephalitis, which caused him to suffer from cognitive impairment. [ 4 ] The plaintiffs apply for

summary judgment on the issue of liability. [ 5 ] For the reasons which follow I grant

summary judgment in favour of the plaintiffs on the issue of liability. The legal issue [ 6 ] Mr. Swanson pleads inevitable accident. [ 7 ] Lord Esher, M.R., in The “Schwan” , [1892] P. 419, at p. 429, discussed inevitable accident as follows: In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control , and the effect of which could not have been avoided by the greatest care and skill. (emphasis added) [ 8 ] Counsel for Mr.

Swanson says that the threshold to establish inevitable accident has been lowered so that now a defendant does not have to show that he took ‘greatest care and skill’ but simply that something occurred over which the defendant had no control and he took reasonable care in the circumstances. [ 9 ] The defence of reasonable care failed in Telfer v Wright , 1979 CarswellOnt 723 , where the defendant driver blacked out and caused an accident. [ 10 ] Here is how the defendant Swanson distinguishes the Telfer case from his situation: In Telfer , the party advancing the inevitable accident defence had suffered two dizzy spells which caused them to pull their car of the road, yet they continued to drive subsequently and ultimately blacked out and caused an accident.

The defendant in Telfer was very aware they had issues that could affect the safety of their driving yet continued to drive. ... Mr. Swanson had no indication that he was suffering from a serious brain infection or that it could affect his driving until it was too late. [ 11 ] With this issue in mind, I will review the evidence.

The facts asserted by the plaintiffs Following are the facts and factual inferences asserted by the plaintiffs in their written argument: • On July 22, 2011, the plaintiff, Wayne Behiels was operating his automobile northbound on Deerfoot Trail, with the Plaintiff, Gladys Behiels as a front seat passenger. • At the same time, the Defendant, James Swanson, was operating his automobile southbound on Deerfoot Trail, in the lanes designated for northbound traffic. • As a result of Mr. Swanson travelling in the wrong direction on Deerfoot Trail, a head​on collision resulted. • Mr.

Swanson has advanced the defence of inevitable accident on the basis that he was suffering from HSV encephalitis at the time the collision occurred. • The day before the collision, Mr. Swanson attended on his family physician and reported a 3 day history of a head cold, diarrhea, dry heaves, general feelings of sickness, and fever. The physician assessed Mr. Swanson as having acute bronchitis and prescribed Azithromycin with instruction to take two pills immediately. • Mr.

Swanson deposed at his questioning, conducted on July 21, 2015, that the day before the collision, his mother-in-law drove him to and from the doctor's office because he was not feeling well. • Mr. Swanson did not fill his prescription that evening, nor did he take two Azithromycin pills, as was recommended by his physician . • On the morning of the collision, Mr. Swanson drove from his home in Beiseker to his workplace located in the Foothills Industrial Park, in S.E. Calgary, a distance of 72 km away.

• Mr. Swanson arrived at work at approximately 6:30 a.m. and waited in his vehicle for his employer to arrive. • While sitting in his vehicle, Mr. Swanson realized he was feeling too unwell to work. Instead of starting work, he picked up his paycheck, planning from there to deposit his paycheck in Airdrie, and then fill the prescription he received the day before. • At approximately 7:00 a.m., Mr. Swanson left his workplace in his vehicle, which he himself was driving. He acknowledged feeling uncomfortable and acknowledged a rise in his temperature at that time. • At his questioning, Mr.

Swanson deposed that he recalled feeling confused immediately after he left his workplace and experienced an increase in confusion as he continued to drive: Q. Well, let's start -- when you left your workplace were you at all confused? A. Yes. Q. Okay. Take me through what you remember about being confused when you left your workplace. A. Just a feeling of something is not right with -- with me, and I had some difficulties with direction, which way I was supposed to go. Q. Okay. Do you know which direction you went in first? A. No. Q. You remember when you left being confused. Correct? A. Yes. Q.

And then after you left the workplace that confusion grew. Correct? A. Yes. Q. And you didn't know where you were driving. Correct? A. I knew where I was trying to go, and I was lost. Q. And you specifically recall that? A. Yes. • Mr. Swanson's last clear recollection was of being confused and literally lost in the Foothills Industrial Park roadways. He was driving around the Foothills Industrial Park, trying to exit the area. • Mr.

Swanson, in the midst of this onset of confusion, did not pull over, call for medical or transportation assistance, return to his workplace, or consider any other alternative to continuing to try and drive to the bank in Airdrie, to deposit his paycheck, some 50 km away. • Mr. Swanson, at his questioning, agreed that the collision could have been avoided if he did find alternate means of transport: Q. MR. CUMING: When you left your employer that morning, you knew that you were not well? A. Right Q. You knew you were confused. A. I was starting to realize things weren't right. Q.

Had you asked someone to assist you, the collision would have been avoided. Correct? A. If I had asked someone, yes. Q. If you would have chosen not to enter in your vehicle and try and find your way to the bank, the collision would have been avoided. Correct? A. If I had chose that, yes. • At approximately 8:30 a.m., one and a half hours after Mr. Swanson left his workplace, the collision occurred. The collision occurred approximately 30 km from Mr. Swanson's workplace. • Witnesses observed Mr.

Swanson travelling southbound in the northbound lanes of Deerfoot Trail for several kilometers leading up to the site of the collision. Aside from travelling in the opposite direction of traffic, Mr. Swanson was observed to have been driving normally, and in a straight line. He was not swerving or driving erratically. • A witness to the collision, Daniel Onerheim, stated that he observed Wayne and Gladys Behiels travelling northbound on Deerfoot Trail in the left hand lane at the same time that Mr. Swanson was travelling southbound in the same northbound lane. • Mr.

Onerheim observed that there was a vehicle travelling in front of the plaintiffs' vehicle. The vehicle in front managed to

swerve out of the way of Mr. Swanson and into the middle lane, but that did not give the plaintiff, Wayne Behiels, enough time to react and move out of the way. Mr. Onerheim observed the plaintiff vehicle attempt to avoid the collision, but confirmed from his perspective, there was no ability to do so. • Following the collision, EMS arrived on the scene. The EMS report states the following under patient medical history: General: Other/Details: recent sinus infection - causing high fevers and confusion as per pt. • Mr.

Swanson was taken by EMS to Foothills Medical Centre, where he was subsequently diagnosed with HSV encephalitis. The emergency urgent care record states that Mr. Swanson had a one week history of a sinus cold with intermittent confusion. • Mr. Swanson states in his affidavit that he was not diagnosed at the time the collision occurred, that he had no reason to believe that he was not capable of driving his vehicle, and that none of his attending physicians advised him that he should not be operating his vehicle. • Mr.

Swanson asserts that his condition caused him to lose capacity and that he was not able to appreciate his loss of capacity until after the collision occurred. The facts asserted by the defendant [ 12 ] Following is a

summary of the facts and factual inferences, and responses to the plaintiffs’ factual assertions, extracted from the written submissions filed on behalf of the defendant Mr. Swanson: • The reason Mr. Swanson's mother-in law drove him to the doctor was not because there was any concern about his ability to drive due to illness. • While Mr.

Swanson did give evidence that he recalls being confused on the morning of the collision, his evidence in questioning and on his affidavit is that, at the time this confusion set in, his judgment was impaired such that he was not able to take any reasonable precautions that would have caused the collision to be avoided. • While Mr. Swanson did agree with counsel for the plaintiffs that there were at least two ways that the collision could have been avoided, the two ways put forward are mere hypothetical scenarios made with the benefit of hindsight. The question to be asked of Mr.

Swanson is not whether the collision could have been avoided if he took certain actions. Rather, the question is whether the collision could have been avoided through reasonable precautions. As is clear from Mr. Swanson's evidence, his cognitive impairment came on so quickly as to render any reasonable precautions beyond his grasp. • Ultimately, Mr. Swanson had been feeling unwell. He took reasonable steps to address this feeling by seeing a physician, taking time off work and planning to take medication. At no time did anyone express any concern about Mr.

Swanson's ability to drive. • Further, at no time was it ever suggested to Mr. Swanson or even brought onto his radar that he may be suffering from a brain infection that could cause serious cognitive impairment. • The plaintiffs suggest that Mr. Swanson was ill in the week leading up to the collision. While this is indeed correct, it is respectfully submitted that the illness Mr. Swanson was feeling was not significant enough to suggest to a reasonable person that he should not be operating a motor vehicle.

Rather, the illness he experienced was simply a sense of being unwell, which he addressed by attending on his physician as any reasonable person would do. • Further, his physician expressed no concern about his cognitive functioning and diagnosed a sinus infection, a condition that would not normally be associated with severe cognitive degradation such as that experienced by Mr. Swanson at the time of the collision. • Being sick is not enough for a reasonable person to determine they should not be operating a motor vehicle. • The plaintiffs suggest that Mr.

Swanson was suffering from confusion in the week leading up to the collision. It can only be assumed that this conclusion has been drawn from the medical documents attached to Mr. Behiel’s affidavit, but Mr. Swanson was not questioned on this point, nor were those medical documents properly introduced into evidence. • The plaintiffs suggest that Mr. Swanson was unable to drive himself to the doctor the day prior to the collision. This is incorrect and goes against the evidence Mr. Swanson gave at questioning. Specifically, Mr.

Swanson advised during his questioning that he had no concerns about his ability to drive at this time. • The plaintiffs suggest that Mr. Swanson was confused after leaving his workplace on the morning of the collision and should have realized he was not able to drive at that point. However, Mr. Swanson's evidence is clear that by the time the confusion set in his judgment was already impaired such that he was not able to take reasonable steps to avoid the collision. • The plaintiffs note that Mr. Swanson had a conscious memory of being confused. It is unclear what point is being made by noting this.

There is no evidence to suggest that memory loss and impaired judgement must go hand in hand. Indeed, Mr. Swanson has memories of the collision though he was clearly cognitively impaired at that time and so this observation has little merit. • Mr. Swanson’s evidence shows that the cognitive impairment that rendered him unfit to drive came on so suddenly and in such extremes that he was not able to take any reasonable steps to avoid the collision. Further, it is submitted that nothing in the week leading up to the collision could have alerted Mr.

Swanson to the fact he was suffering from a major brain infection that could drastically affect his cognitive abilities. • Mr. Swanson’s evidence is clear and unrefuted, that it was not foreseeable to him that he was suffering from a serious brain infection that could have catastrophic effects on his cognitive functioning. Further, he was not alerted to the degradation of his cognitive

functioning prior to such degradation seriously impairing his judgment to the point he could not take reasonable steps to avoid thecollision. At the very least, the question of the effect of the HSV Encephalitis on Mr. Swanson raises a genuine issue of a potentiallydecisive material fact and the evidence in this regards should be tested by way of a trial. Analysis [13] The outcome of this

summary judgment application depends on the issue of onus. [14] On the face of it, the collision was caused by the fault of Mr. Swanson. He was driving southbound in the northbound lanes oftraffic. [15] Mr. Swanson defends on the basis of ‘inevitable accident’. [16] The plaintiffs have summited a number of cases which hold that, where a defendant in a trial raises the defence of inevitableaccident, the onus lies on the defendant to establish that defence. [17] For example, in Rintoul v.

X-Ray & Radium Industries Ltd., (SCC), [1956] S.C.R. 674, 1956 CarswellOnt77 at para. 8 the Supreme Court of Canada stated: There can be no doubt that, generally speaking, when a car, in broad daylight, runs into the rear of another which is stationary on thehighway and which has not come to a sudden stop, the fault is in the driving of the moving car, and the driver of such car must satisfy theCourt that the collision did not occur as a result of his negligence. [18] This is a

summary judgment application, not a trial, and so there is no onus on Mr. Swanson to establish inevitable accident atthis stage of the proceedings. On the other hand, the plaintiffs have established a prima facie case, and unless Mr. Swanson comesforward with sufficient evidence to challenge the plaintiffs’ prima facie case, he faces the prospect of this Court concluding that theplaintiffs’ case is unassailable, or, in other words, highly likely to succeed. [19] In Beaver Hills Holdings Ltd. v. Greenstreet Development Corp., 2013 ABCA 360 at para. 12, the Alberta Court of Appealmade this observation: The chambers judge was correct in asserting that once the applicant for

summary judgment has presented a prima facie case, the otherside has an evidentiary burden of demonstrating some evidence to rebut that case or face the consequences. [20] Mr. Swanson attempts to satisfy this evidentiary burden by deposing, in aid of his defence of inevitable accident: ... due to the rapid degradation I suffered as a result of the HSV Encephalitis, I was not able to appreciate that I had any impairment thatwould keep me from driving prior to the accident. [21] This statement of Mr.

Swanson’s is of no evidentiary value because he does not establish that he has the expertise to advancewhat is clearly, from the context, opinion evidence of a medical nature. [22] See, for example, Canalta Concrete Contractors v Camrose, at para’s 22 and 23: Brian Nilsen's evidence, in addition to being hearsay, expresses conclusions. An example is as follows, from his affidavit: 6. The same waterproofing agent, Perma-Quick was used on the walls and on the floor slab.

Testing as aforesaid has shown that thewalls are water tight and the floor slab is not, and I therefore believe that the water leakage problems just be as a result of the method ofapplication of the Perma-Quick to the floor slab. The emphasized

part is a conclusion by Nilsen. Nilsen is not an expert witness, so his opinion on the point is neither interesting, relevantnor admissible. [23] See also Dow Chemical Canada ULC v. Nova Chemicals Corp., 2015 ABQB 401 at para’s 11 and 12: The Supreme Court in R. v. Graat acknowledged that the line between fact and opinion is not clear and that the law of evidence isburdened with a large number of rules, exclusions and exceptions to exclusions in this area.

The Court cited examples of subjects onwhich lay persons may give opinion evidence, such as age, emotional state, condition of objects, estimates of speed or distance or state ofintoxication. Dickson, J. noted that the basis for these exceptions was the difficulty a witness may have in narrating his factual observationsindividually.

However, he distinguished the opinions in the case before him from a situation where the matter called for a specialist,“where scientific, technical or specialized testimony is necessary in order that the tribunal properly understands the relevant facts”. [24] In my view, absent opinion evidence from a medical expert witness on behalf of Mr. Swanson as to the impact of HSVencephalitis on cognitive function, we are left with the conclusion that it is highly likely that the plaintiffs will succeed in establishingthat Mr.

Swanson is liable for the accident. [25] This satisfies the onus of proof on the plaintiffs as applicants for

summary judgment which is described as follows inWhitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc., 2015 CarswellAlta 1379, 2015 ABCA 252 at para.9: In light of the Supreme Court's decision in Hryniak v Mauldin, 2014 SCC 8, [2014] 1 SCR 87 and decisions of this court since Hryniak,summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. Rather, the court asks whether thereis any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is so compelling that the likelihood itwill succeed is very high such that it should be determined summarily.

[ 26 ] I hereby grant

summary judgment to the plaintiffs in the form of a declaration that Mr. Swanson is liable to the plaintiffs for the damages they incurred as a result of the collision of July 22, 2011, with the only remaining issue being the quantum of damages. Costs [ 27 ] If counsel cannot agree on costs, they may approach me for a ruling in that regard. Heard on the 04 th day of October, 2016. Dated at the City of Calgary, Alberta this 11 th day of October, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: Petrina Wallebeck Cuming & Gillespie for the Plaintiffs Ryan C.

Penner for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of J.T. Prowse Master in Chambers _______________________________________________________ The appearances to reflect Petrina Wallebeck in place of James D. Cumming