ATV Accident resulting in a spinal cord injury to our client
On August 11, 2013, mechanic, and family man, Mr Parlby was travelling rural trails in an ATV he had repaired with childhood friend Mr Pelland. The last time Mr. Parlby’s wife, and mother of his young daughter heard from him was at around 2:45 am when his phone battery died, in the pouring rain, where the men were stuck with an overheated ATV, too little fuel, and little chance of getting home in a hurry. Unhappy, Ms Mclaughlin held their child close, and waited for the men to return.
No one could have anticipated that that was the last day Mr Parlby would be formally able to work as a mechanic. No one could have anticipated the complex sequence of assumption and response, which dictated the momentary choices of the three men involved in a collision which left Mr Parlby unable to resume a normal life.
Without helmets, and setting out late in the evening, the two men found themselves at the A&W after hours battling the newly repaired ATV which had been overheating as they tested it over rocky trails. Mr Parlby assumed his friend would take the usual, off-road route home after finally emerging from narrow trails to the scales, but his friend was driving, and it all happened so fast. When Mr Pelland pulled out of the scales area and started out in the wrong direction on the highway ramp, the lights of a police car flashed on. Mr. Pelland appeared to panic. A collision between the ATV and the police car occurred after a brief pursuit, the latter colliding with the ATV and sending it down an embankment, ejecting both Mr. Pelland and Mr. Parlby. Mr. Parlby suffered extensive injuries, most significantly a spinal cord injury.
This was a long and complicated case, with conflicting statements and recollections of the details of the events. Reconstructions complicated the missing memories as the parties tried to string together the precise sequence of events making their case.
While Constable Starr, through his statements and testimonies, described an incident where an intoxicated driver tried to ram him off the road with an ATV as he tried to overtake them to warn the public of the reckless vehicle’s presence, at an intersection up-ahead; Mr Parlby’s recollections were of confusion as the speeding police car appeared, disappeared, and re-appeared shortly before making impact with the ATV and sending it hurtling off the road. The men were not wearing helmets. The original intent of the ATV trip was for Mr. Pelland to show his friend a short trail leading to his relative’s house. That afternoon and evening, together with Mr. Parlby’s family the two friends had shared a BBQ meal and then had worked on Mr. Pelland’s vehicle outside, consuming a few beers over the course of many hours.
This case was tough from the start. The assumptions of Constable Starr, based on the driver’s handling of the ATV directed, and in his eyes, justified his decision to stop the ATV. Mr Parlby’s claim in negligence required that he prove that the defendant (Constable Starr) owed him a duty of care, that the constable breached this duty, and that the damage sustained and proven was caused by this breach. The trial judge’s analysis recognized that under the stress of the situation, perfection was not expected of the officer. However, she found that the officer failed to conduct the ongoing risk analysis which constituted taking the necessary care, while attempting to overtake the ATV driven by Mr Pelland. Constable Starr, it is concluded, did not act in a reasonable fashion given the vulnerability of the passengers and the real risk posed by the ATV, travelling at around 40 mph. Furthermore, his claim that the men in the ATV were negligent for having neglected to wear seatbelts was denied as the judge found that in this case, the evidence, including expert evidence, did not establish that a seatbelt would have prevented the outcome to Mr. Parlby.
Mr Pelland, the driver and friend of Mr Parlby certainly breached his duty of care. He made the decision to continue on a public road in an unroadworthy vehicle, and refused to stop when instructed by the officer. At the end of the analysis, 65% of fault was apportioned to Mr Pelland, and 35% to Constable Starr.
The events leading up to this case were all materially significant, but all part of a normal, albeit long day between friends. In the blink of an eye, one can find oneself in such a position. In conclusion, after a plethora of testimonies by medical experts, it was found that Mr Parlby suffered Mild Traumatic Brain Injury (MTBI), significant spinal cord and other orthopedic injuries, and was likely to deteriorate over time. The award of damages included considerations of foregone past and future earnings, Mr. Parlby’s experience of pain, the costs of future care; including psychological and physical therapy, modifications to vehicle and home, as well as a range of other considerations.
In such cases, where a complex series of events might render judgment difficult, one is well advised to seek legal counsel with experience on how such events, and their repercussions ought to be compensated. It is difficult to know, in periods of traumatic distress, the true loss one might experience in such cases. It is all too easy to put these experiences down to an accident, whereas life changes such as this stand to impact on our futures to a greater degree than we can ever anticipate or understand.
