Sympathy for the Drunk, Not the Taxpayer: the Supreme Court Rules That Impaired Drivers

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Law 12Tort LawMs. Ripley

Sympathy for the drunk, not the taxpayer: the Supreme Court rules that impaired drivers have the right to expect safe dirt roads.O'Neill, Terry.
Full Text: COPYRIGHT 2002 BC Report Magazine Ltd.
A few miles outside of Shellbrook, 30 miles west of Prince Albert, there is a tricky little turn on a backcountry dirt byway known as the Snake Hill Road. Not only does the curve's bend (or "radius," as engineers call it) get tighter midway through, but the road also slants away from the direction of the curve. And, oh yes, there is no sign warning drivers of the danger. Nevertheless, there had never been an accident on the curve until 1992, when a drunk driver, Doug Nikolaisen, flipped his truck. The crash left one of his passengers, a pal named Paul Housen, then 26, a quadriplegic. After a Supreme Court of Canada ruling in late March, it also left him a millionaire.
As a result of his injuries, Mr. Housen sued Mr. Nikolaisen and the Rural Municipality (RM) of Shellbrook for damages. Mr. Nikolaisen's culpability seemed clear; he was driving recklessly along a road with which he was familiar and had a blood-alcohol content more than twice the legal limit.
Shellbrook's responsibility was less obvious. No law compelled the community to post warning signs. The provincial government classified the road as a "Type B bladed trail," which meant it was an ungravelled track on which ruts had been filled in by a grader. More than 28,000 miles of such road can be found throughout Saskatchewan. As Shellbrook administrator Ken Danger says, the province would go broke if all such roads had to be signed along the lines of a highway or city street.
Nevertheless, a trial judge ruled Mr. Nikolaisen was only 50% responsible for his buddy's injuries; Mr. Housen was found 15% responsible, and Shellbrook 35% to blame. In theory, that meant the municipal insurance fund, of which Shellbrook was a part, was responsible for paying only $875,000 of the $2.5-million award. But Mr. Nikolaisen had insurance for only $200,000, meaning the community's insurance fund would have to cover the rest.
Shellbrook appealed the case to the Saskatchewan Court of Appeal and won, but Mr. Housen then took the matter to the Supreme Court of Canada. Last month, the high court ruled 5-4 (Chief Justice Beverley McLachlin with the majority) to reinstate the trial judge's ruling. It was a decision that set off a storm of protest in Saskatchewan. The court "shows an utter lack of common sense and ignorance of rural Canada," the Saskatoon StarPhoenix fulminated. By ruling that RMs should be required "to post warning signs to protect idiots and drunks in vehicles from every bump and curve on dirt roadways that often are no more than glorified cow paths, the high court has created a nightmare for rural governments."
Mr. Housen's lawyer, Dennis Quon of Saskatoon, says his client's paralysis means he cannot so much as lift his hand from a table; he manages to travel by manoeuvring a toggle on a motorized wheelchair. Mr. Quon says the award will enable Mr. Housen to live a more normal life. "If he wants to go somewhere, he will be able to hire someone to take him there. If he wants to go to a ball game, or a movie, or out to dinner, for example." But no amount of money can rescue Mr. Housen from what the lawyer describes as "a pretty rotten life."
Nevertheless, Mr. Danger thinks Shellbrook should not have been found liable. "It just blows us away," he says. "Local people, they just can't believe the judges would rule against us. The guys were impaired. They'd been on a toot for almost 24 hours. They get themselves in trouble and they refuse to take responsibility." Workers have already fixed several hazards along Shellbrook's rural roads, but it would take "millions and millions of dollars" to bring them up to the standard implied by the courts. As for the curve on which Mr. Housen was injured, some brush has been removed so drivers can better see the hazard.
But that might not be enough. In fact, one of the dissenting Supreme Court judges, Justice Michel Bastarache, seemed to think the majority's decision could force RMs to post signs directed at drunk drivers. Mike Morris, legal services division manager of the Saskatchewan Association of RMs, says all rural communities will now have to take a hard look at their roads. Complete signage is impractical, but hazards are going to have to be assessed from the perspective of a person who is not familiar with the road.