2014 QCCQ 13274, 2014 QCCQ 13274

McCarthy c. Kronish 2014 QCCQ 13274 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132979-123 DATE: December 16, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ BRIDGET ELIZA McCARTHY […] Montréal (Québec) […] Plaintiff v.

HOWARD LORNE KRONISH […] Côte Saint-Luc (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Bridget Eliza McCarthy, sues the Defendant Howard Lorne Kronish for damages resulting from a road accident that occurred on the afternoon of June 23, 2011 at the intersection of Bourret and Clanranald in Notre-Dame-de-Grâce. This intersection is a four-way stop. [ 2 ] Ms McCarthy was cycling eastbound along Bourret Street in Notre-Dame-de-Grâce at the intersection of Clanranald.

Mr Kronish was driving his motor vehicle northbound on Clanranald. The two collided in the intersection, past the stop signs. [ 3 ] Ms McCarthy testifies that she made her stop, saw Mr Kronish's vehicle moving toward its stopping point on Clanranald, then she resumed riding through the intersection, looking toward the pavement to avoid potholes. When she looked up she saw Mr Kronish's vehicle in motion in front of her. The wheel of her bike struck the front left wheel of the car and was drawn under the moving wheel.

She let go of the bike, pushed off the front left fender of the car with her two hands to avoid being drawn under the vehicle herself. The transfer of energy from the moving car and her own push combined to throw her in front of the car where she fell to the ground. Mr Kronish had applied the brakes immobilising the car, preventing Ms McCarthy from further impact.

Her bicycle struck her as it fell toward the ground. [ 4 ] Ms McCarthy suffered no broken bones (though the imaging report P-10 done in September 2011 could not rule out a healed un- displaced fracture of the scaphoid bone of the left wrist because of a cortical irregularity perceptible on the x-ray), and no head or spinal injury.

Apart from scrapes and bruises, the main problem was a trauma to her left wrist that required physiotherapy and osteopathy treatments to overcome the resulting lack of mobility and the pain. [ 5 ] Ms McCarthy's claim, summarised in a letter of demand of September 1, 2011 and reduced slightly in the Application in the Small Claims division to $ 1,180, included repairs to her bicycle and replacement of the helmet, as well as a loss of salary related to the injuries, the part for which she was not entirely compensated by the SAAQ.

She also claims daily bus fare in the period following the incident on the basis that she could no longer ride her bike because of the injuries, a less expensive form of transit that that offered by the STM. [ 6 ] Mr Kronish raises the Court's lack of jurisdiction on the basis of the Automobile Insurance Act Ch. A-25 [1] that precludes, in

article 85.57, any action before a court for bodily injury caused by a motor vehicle. [ 7 ] He also makes a claim against Ms McCarthy, set out in his C ontestation as a Demande reconventionnelle. That claim, for damages to his vehicle caused by the impact with Ms McCarthy's bicycle, assessed at $ 812.00, is based on the allegation that Ms McCarthy failed to stop at her stop sign and was thus at fault and caused these damages. He alleges as well a loss of wages of $ 1,000.

ISSUES [8] The Court must determine: 1) Which parts of the Plaintiff's claim are allowable, despite the Automobile Insurance Act? 2) Has the Plaintiff established the Defendant's responsibility for the prejudice resulting from the incident, and if so, for whatamount? 3) Has the Defendant established the Plaintiff's responsibility for the prejudice resulting from the accident, and if so, for whatamount? [9] Mr Kronish's version of the events is similar, but is viewed from his vantage point, behind the wheel of the 2011 Hyundai hewas driving. [10] He testifies having stopped at the intersection and, when he was proceeding through it, having been struck by Ms McCarthy'sbike.

He states that she did not stop at her intersection. [11] His recollection is that she fell to the left side of the car, not in front of it.

From the way the accident occurred, he infers that shemust not have stopped and she must have been moving at a high velocity given the damages that were caused to the car. [12] Mrs McCarthy rebuts this, stating that if she had been cycling at a high speed, she would not have pushed off the car, she wouldhave continued with her own inertia over his car. [13] He uses photographs (D-2) to illustrate damages to the quarter panel and driver-side front door of the car, requiring minor repairsassessed at $ 812.93.

He admits he had no loss of wages. [14] Both parties speak of the sky being very dark because of the summer rainstorm and of a hedge on Bourret Street, though it is setback behind the rather wide sidewalk along Bourret. Analysis Availability of the recourse [15]

Article 83.57 of the Act states the following: 83.57. Compensation under this title stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shallbe admitted before any court of justice.

Subject to sections 83.63and 83.64, where bodily injury was caused by an automobile, the benefits or pecuniary benefits provided for thecompensation of such injury by the Act respecting industrial accidents and occupational diseases (chapter A-3.001), the Act to promotegood citizenship (chapter C-20) or the Crime Victims Compensation Act (chapter I-6) stand in lieu of all rights and remedies by reason ofsuch bodily injury and no action in that respect shall be admitted before any court of justice. [16] Authors Jean-Louis Baudouin and Patrice Deslauriers explain the no fault regime governed by the Act in these terms: 1 – 1115 […] La loi défend cependant d’une façon radicale tout recours ou toute demande supplémentaire devant une cour de justice, enédictant que les indemnités prévues par la loi tiennent lieu de tous droits et recours, en raison d’un dommage corporel au sens particulierque prend cette expression dans la loi. […] [17] The public compensation scheme governed by the law aims at providing no-fault insurance for victims of an automobileaccident, as explained by the Court of Appeal in Lemay c.

Productions Pram Inc. (C.A.Q.): [2] La

Loi sur l'assurance automobile, L.R.Q. c. A-25, est entrée en vigueur en 1978. Elle a essentiellement pour but de veiller à ce que lesvictimes d'accidents d'automobile soient indemnisées sans égard à la responsabilité pour leurs dommages corporels. Elle retire aussil'arbitrage des dommages aux tribunaux judiciaires et le confie à la société de l'assurance automobile du Québec (Voir l'opinion de moncollègue le juge Gendreau dans Régie de l'assurance automobile du Québec c. Grondin & al., C.A.M. (QC CA), no500-09-000280-891, du 9 septembre 1991, pp. 15 et s.).

Si elle évite aux victimes les aléas et dépenses d'un procès, elle confère parfois(et c'est le cas dans le présent dossier) des bénéfices pécuniaires qui sont loin derrière ceux qu'accorderaient les tribunaux judiciaires.L'application de cette loi a donné naissance à certaines difficultés d'interprétation notamment quant au problème de savoir ce qui étaitcompris dans l'expression législative de l'article 1(10) de la loi, qui définit le dommage causé par une automobile. [18] The Court of Appeal in Société de l'assurance automobile du Québec c.

Circuit Mont-Tremblant inc.[3], identified threeprinciples on which the Automobile Insurance Act[4] is based. These principles are the following: 1) the compensation scheme isseparated into two schemes: compensation for bodily injury and compensation for property damage; 2) compensation is grantedregardless of fault for bodily injuries (“no fault” regime); and 3) an action may not be brought for personal injury before a court ofjustice. [19] The Court must determine the type of damage claimed, as the Act is based on two different compensation schemes.[5] Exclusion of claim for bodily injury

[ 20 ] It goes without saying that the loss of a week’s salary is excluded: this is a consequence of the bodily injury. It is treated in the same way as the medical expenses. [ 21 ] But, the claim regarding the cost of daily bus fare in the period following the accident must be characterised, because it is not obvious. The Court can not grant it if it is a consequence of bodily injury, because the no-fault regime provided for under the Act does not cover bodily injury. [ 22 ]

Article 2 of the Act defines bodily injury as “ any physical or mental injury, including death, suffered by a victim in an accident, and any damage to the clothing worn by a victim .” Bodily injury can thus be construed to mean any damages or inconveniences suffered by the victim as a result of an accident. [ 23 ] In Gilbert c.

Automobile Renault ltée, [6] Justice Dalphond examined the distinction between bodily injury and property injury as defined by the Act and concluded the following: 29 En somme, je suis d'avis que l'ensemble de la réclamation de l'appelant doit être caractérisée de "préjudice corporel" au sens de la Loi.

En effet, les chefs de la réclamation constituent soit des dommages causés à la personne économique de l'appelant par l'accident (coût de la voiture et du voyage et honoraires payés en France), soit des atteintes à sa qualité de vie (perte de temps, troubles et inconvénients causés par les évènements subséquents, stress, nervosité, vacances gâchées). Comme le fait valoir la S.A.A.Q. dans son mémoire, le préjudice corporel est rattaché à la personne accidentée et le préjudice matériel à l'automobile ou à un autre bien spécifique.

Il n'existe pas de préjudice autre. [ 24 ] In the present case, t he claimant alleges that due to the impact of the collision and the bodily harm she suffered as a consequence, she could not bike anymore and was compelled to take the public transport. [7] Hence, the claim for the cost of the bus fare is related to the bodily harm suffered by the victim after the accident. [8] The cost for bus fare is an economic harm resulting from a physical harm. It therefore falls under the category of bodily injury, and the Court does not have jurisdiction to award it.

Consequently, the claim must be dismissed, as no action for bodily injury lies before a court. [ 25 ] This brings us to the claim relating to the replacement of the helmet. Claim for property damage [ 26 ] As opposed to bodily injury, the Act does not prevent the victim of an automobile accident to claim property damage before a Court of justice, as stipulated in

article 115 of the Act : 115. The victim of property damage caused by an automobile is compensated in accordance with the ordinary rules of law to the extent that sections 108 to 114 do not derogate therefrom. [ 27 ]

Article 84.1 of the Act defines property damage as “any damage caused in an accident to an automobile or to other property”: 84.1. For the purposes of this title, any damage caused in an accident to an automobile or to other property is deemed to be property damage. For the purposes of this title, every person who sustains property damage in an accident is deemed to be a victim. [ 28 ] Based on

article 2 of the Act , any damage to the clothing worn by a victim would unquestionably constitute bodily injury. [ 29 ] However, the Court is of the view that the helmet was not element of clothing, but rather a piece of equipment. As such, the Court considers replacement of the helmet as property damage under the Act . [ 30 ] In Nadeau c. Lemay , [9] the claimant was fully indemnified by the SAAQ for the bodily damages. In this action, the Court of Québec deemed property damages as to include the loss of sunglasses and a backpack. Similarly, in Ouimet-Savard c.

Roy , [10] the Court awarded damages for the replacement of a backpack and a cell phone, as well as repairs to the victim’s bicycle [ 31 ] The damage to the Plaintiff’s bicycle are object property damage that can be claimed in this action. This is almost the case for the Defendant’s counter claim for damage to his vehicle.

Responsibility [ 32 ] The issue of whether one party can succeed in the claim against the other depends upon what happened at the intersection: who had the right of way and who stopped or failed to stop? [ 33 ] The issue whether Mr Kronish stopped at his stop sign before proceeding through the intersection is a complex one. Mrs McCarthy saw the car in motion before it reached the stopping line. Her testimony does not establish that he did not stop, but, if reliable, it does establish that she stopped, and proceeded through the intersection before he got to his stop line.

She was relying upon him to stop, relying on him seeing her availing herself of the right of way. [ 34 ] He may have stopped, or simply proceeded slowly, but what is certain is that he did not see her at the intersection. He became aware of her presence when he heard the impact. He immediately braked. [ 35 ] Ms McCarthy argues that if he had stopped, she would not have hit him, so he must have continued to move from the point in time when she saw him approaching the intersection. [ 36 ] In the Court's analysis, the important issue is that Mr Kronish, in entering the intersection, did not see the Defendant.

If he had,

he would have braked before the impact. If he did not see her, it was because he did not look attentively to the left when he was arrivingat the intersection. He mentions the dark sky and the presence of a hedge, but he does so in a rather vague way. He does not, in histestimony, describe coming to a full stop, looking both ways, ascertaining that it was his turn to proceed, and then proceeding withcaution through the intersection.

His case is based essentially on the inference that because the damages to the car were serious,therefore he must have been struck by a cyclist who had not made her stop. [37] That inference is not very strong, at least no stronger than the inference that the cyclist must not have been going very fast,because she was able to push off the car with her hands, rather than flying over the vehicle when her bicycle was immobilised by it. [38] The Court concludes that Mr Kronish has not established the Plaintiff's fault on the balance of probabilities.

His vehicle cameinto contact with a cyclist that he did not see, but he has not established that her presence at the point of collision was the result of a faulton her part. [39] Mrs McCarthy's narrative is more complete, and more plausible. The Court would not jump to the conclusion that, because she isa cyclist, she must have not stopped at the intersection.

While it may be true that cyclists do not always follow the rules of the road, justas motorists do not always come to a full stop when it is more convenient to slow down to almost a stop, the Court will not presumefault: it must be demonstrated on the evidence. [40] The issue here is that the motorist did not see her, and did not establish that he made the required look to the right and the left.Was she in his peripheral vision? Perhaps, but he doesn't know. Her testimony is that she saw him arriving toward his stopping point.She had stopped and took her turn to go.

According to the specific rule governing such situations,[11] he had to yield to her the right ofway: 370. At an intersection regulated by stop signs for all directions, the driver of a road vehicle or any person riding a bicycle must stop hisvehicle and yield the right of way to any vehicle having reached the intersection before him. He must also yield the right of way topedestrians crossing the roadway he is about to cross or enter. ___________ 1986, c. 91, s. 370. [41] The Court accepts the sincerity and the accuracy of the Plaintiff's recollection of the events.

The evidence establishes, on thebalance of probabilities, that she was exercising her right of way and collided with a vehicle that should have respected her prioritythrough the intersection. She will be awarded damages in compensation of the prejudice to her property. [42] The Plaintiff established $ 154.31 for the repairs to her bicycle, and $ 70.00 to replace her helmet. As mentioned above, the Courtconsiders that the helmet is not an

article of clothing, which, if it were, would fall under the category of bodily injury under the Act, butrather property damage which is recoverable. BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 224.31 plus interest at the annual rate of 5% and the additional indemnityprovided for by

article 1619 of the Civil Code of Québec, as of September 1, 2011; DISMISSES the Defendant’s counter claim; CONDEMNS the Defendant to pay the Plaintiff the judicial fees of $ 103.00. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 23, 2014 [8] See Garneau c. Charles, : [17] CONSIDÉRANT QUE les frais de déplacement se rattachent également aupréjudice corporel (déplacements chez le médecin), et ne peuvent être réclamés devant un tribunal de droit commun (d'ailleurs certainsde ces frais ont été remboursés par la S.A.A.Q. – voir la lettre du 20 novembre 2002).