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Ofremchuk v. Bortnak, 1974 ALTASCAD 921974-11-25
In the Appellate Division of the Supreme Court of Alberta
Citation: Ofremchuk v. Bortnak, 1974 AltaSCAD 92
- and -
Kim John Bortnak and
The Honorable Mr. Justice McDermid
The Honorable Mr. Justice Sinclair
The Honourable Mr. Justice Moir
Judgment of the Court delivered by
The Honorable Mr. Justice Sinclair
R. D. Kerr, Esq., Counsel for the Appellant
J. W. Rose, Esq., Counsel for the Respondent
 In this action, the appellant was injured on Halloween evening, 1969. She had chased a girl who was playing a prank outside her house, and who had been riding in a car driven by the respondent, Kim Bortnak. With the appellant close at her heels, the girl got into the car which was moving slowly ahead. The appellant tried to get into the car, and indeed was part way in when the girl pushed her out with her foot. The driver was aware of what was happening. The appellant was injured by the wheels of the vehicle.
 The learned trial judge held that the driver was not negligent. With respect, we are of the opinion that he was negligent. He was aware of the situation as it developed, yet he continued to let the car move ahead.
 On the other hand, we believe that the appellant was contributorily negligent. She was careless for her own safety in attempting to enter the moving vehicle. We fix the degrees of blame at one-third for the appellant and two-thirds for the respondent.
 The learned trial judge held that a settlement for $40. was made between the two young people and the appellant shortly after the accident. With respect, we are of the opinion that the evidence falls far short of establishing a release.
 We turn now to the question of damages. The learned trial judge said that had he found the defendants liable he would have fixed the appellant’s damages at $500. With respect, we believe that this figure amounts to a wholly erroneous estimate of the seriousness of the appellant’s injuries. We recognize that the learned trial judge saw and heard the appellant as she gave her evidence. But it seems to us that he overlooked the effect of the evidence given by the appellant’s doctor, and, indeed, that given by the specialist called for the defence. In our view, a realistic appraisal of the general damages would be $2,500.
 The appeal is accordingly allowed, with costs here and below, the limiting rules not to apply.
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