J. Q.B. A.D. 1996 No. 172 J.C. E. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: CATHERINE DONAGHY, by her litigation guardian, HOWARD DONAGHY RESPONDENT (PLAINTIFF) and AARON SCHUTTE APPLICANT (DEFENDANT) Gerald B. Heinrichs for the respondent (plaintiff) Sheldon M. Stener for the applicant (defendant) JUDGMENT MATHESON J. June 11, 1999 [1] The plaintiff has applied for an order, pursuant to s. 55 of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”), requiring Saskatchewan Government Insurance (“SGI”) to pay to the plaintiff the amount awarded to the plaintiff in a judgment dated October 29, 1998. [2] The defendant, on the other hand, has applied for an order setting aside the judgment and striking out the claim of the plaintiff. BASIS OF APPLICATIONS [3] In her statement of claim dated October 7, 1996, it was alleged that the plaintiff, as pedestrian, had, on October 26, 1995, been pinned between an automobile operated by the defendant and stationary motor vehicle, thereby causing personal injury to the plaintiff. [4] It was further alleged that the acts of the defendant in injuring the plaintiff were criminal acts, and that he also committed the torts of assault, battery, trespass and intentional interference with the plaintiff. The defendant did not defend the claim against him and was noted for default. The plaintiff applied for summary judgment, but was required to proceed to hearing to assess her damages. [5] After hearing date was fixed, SGI intervened, pursuant to s. 56 of Act, and filed statement of defence wherein it was admitted that the plaintiff was struck by moving motor vehicle operated by the defendant but that the claim was barred by s. 102 of the Act. [6] On September 29, 1998, MacPherson C.J.Q.B. ordered that the hearing to assess the plaintiff’s damages, scheduled for October 1, 1998, should proceed without prejudice to SGI’s assertion that the claim of the plaintiff was barred by statute. [7] The plaintiff’s damages were assessed in the total amount of $37,717.35, which included punitive damages of $10,000.00. SECTION 102 OF THE ACT [8] Section 102 of the Act came into force on January 1, 1995, approximately ten months before the plaintiff was injured by the defendant’s automobile. That section states: 102 Notwithstanding any other Part of this Act or any other Act or law, but subject to the other provisions of this Part: (a) no person has right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; (b) no action or proceeding lies or may be instituted in any court respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; and (c) the right to benefits stands in lieu of all right of action to which person is or may be entitled to respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force. [9] Section 101 of the Act defines “accident” and “bodily injury” as follows: 100(1) In this Part: (a) “accident” means any event in which bodily injury is caused by an automobile; ... (d) “bodily injury” means any physical or mental injury, including any acquired brain injury, permanent physical or mental impairment or death. SUBMISSION OF PLAINTIFF [10] The plaintiff has asserted that it is common ground that the defendant wilfully drove into the plaintiff, trapping her leg between the defendant’s automobile and second automobile; that the defendant fled the scene in his automobile calling out of the window of his automobile that the plaintiff was “dirty little rat”; and that the defendant was tried and convicted of the Criminal Code offence of operating motor vehicle in manner dangerous to the public. [11] The plaintiff has further submitted that s. 102 cannot have been intended to deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, intentional infliction of mental suffering, fraud, deceit and fraudulent misrepresentation. The fraudulent aspects of the plaintiff’s claim arise by virtue of the defendant having motioned to the plaintiff, more than once, that it was safe for her to proceed into the pedestrian crosswalk. [12] If s. 102 of the Act precludes an action for damages as result of the intentional inflicting of harm on victim by use of motor vehicle, “then it is an actionable tort to beat someone up in Saskatchewan with baseball bat but not so if the assailant uses an automobile”. [13] That statement may be accurate, but it overlooks the fact that, although s. 102 of the Act prohibits certain types of law suits, it does not result in the victim not being compensated for personal injuries incurred as a result of an automobile. The Act clearly contemplates scheme of compensation to individuals who have suffered bodily injuries caused by an automobile. [14] Herbert v. Misuga (1994), 1994 CanLII 4577 (SK CA), 116 Sask. R. 292 (C.A.) involved claim against the defendant motor vehicle driver for damages for assault and battery. [15] The defendant Misuga had admitted that he had intentionally steered his truck at the plaintiff Herbert, although he said his intention was to frighten Herbert but not cause the serious injuries incurred when Misuga’s truck struck Herbert. [16] The action was brought more than one year after the injuries were inflicted. The question to be resolved was whether s. 143 of the then The Vehicles Act, 1983, S.S. 1983, c. V-3.1 repealed by The Vehicle Administration Act, S.S. 1986, c. V-2.1 applied: 143(1) No action may be brought against person for the recovery of damages occasioned by motor vehicle after: (a) the expiration of 12 months from the time when the damages were sustained .... Herbert argued that the injuries were not caused by the motor vehicle used as such but by the motor vehicle used as weapon of assault. Consequently, it was submitted the statutory limitation as to commencement of assault actions—two years—applied, rather than s. 143(1) of The Vehicle Act, 1983. [17] In order to accept the foregoing submission, it would have been necessary to conclude that Misuga’s truck was not being used as motor vehicle when it struck Herbert. The Saskatchewan Court of Appeal could not reach that conclusion, and stated that the limitation period in s. 143(1)(a) of The Vehicles Act, 1983 applied. [18] The wording in s. 102(a) of the Act—no person has right of action arising from bodily injuries caused by an automobile—is indistinguishable from the wording in s. 143(1) of The Vehicles Act, 1983—no action may be brought against person for the recovery of damages occasioned by motor vehicle after 12 months. Thus, the same result is dictated in this case as in Herbert v. Misuga: the plaintiff had no cause of action by virtue of her injuries having been “caused by an automobile”. [19] Consequently, there must be a declaration that the plaintiff was precluded, by s. 102 of the Act, from commencing a valid legal action, with the result that the judgment obtained is a nullity. [20] There will be no order as to costs.
Plaintiff applied for an order pursuant to s.55 of the AAIA requiring SGI to pay to the plaintiff the amount awarded to her in an earlier judgment. The defendant has applied for an order setting aside the judgment and striking out the plaintiff's claim. A car-pedestrian accident occurred causing personal injury to the plaintiff. The defendant was convicted of dangerous driving under the Criminal Code. The plaintiff sued for battery and assault. The defendant was noted for default on this claim and the damages were assessed at $37,717.35, $10,000 of which were punitive. The plaintiff submits that s.102 of the Act should not deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, fraud, or similar torts. HELD: The plaintiff has no cause for action by virtue of her injuries having been caused by an automobile. The plaintiff was precluded by s.102 of the Act from commencing a valid legal action with the result that the judgment obtained is a nullity. Although s.102 of the Act prohibits certain types of law suits, the act provides victims with compensation for injury. No order as to costs.