Awalt v. Blanchard, 2013 NSCA 11

• Judge: Saunders, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 15, 2012
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 11;(2013), 326 N.S.R.(2d) 189 (CA)

Awalt v. Blanchard (2013), 326 N.S.R.(2d) 189 (CA);

    1033 A.P.R. 189

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.066

Linda Awalt (appellant) v. Chris Blanchard (respondent)

(CA 371547; 2013 NSCA 11)

Indexed As: Awalt v. Blanchard

Nova Scotia Court of Appeal

Saunders, Farrar and Bryson, JJ.A.

January 25, 2013.

Summary:

The plaintiff was injured in a low speed collision with the defendant. The plaintiff's car sustained $1,914 in damages. The plaintiff immediately experienced headache and nausea. Liability was admitted.

The Nova Scotia Supreme Court, in a decision reported at [2011] N.S.R.(2d) Uned. 41, awarded the plaintiff $10,478 comprised of $2,500 general damages, $5,000 for loss of income, and special damages of $2,978. The plaintiff appealed, alleging that the trial judge erred: (1) in applying the law of causation when determining that the accident did not cause her shoulder injury; (2) in interpreting s. 113(b) of the Insurance Act having regard to: (a) the absence of sufficient reasons for the decision; (b) the determination that she suffered a "minor injury"; (3) in assessing the medical evidence; and (4) in assessing damages for loss of valuable services.

The Nova Scotia Court of Appeal dismissed the appeal with $4,000 costs to the defendant.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Nova Scotia Court of Appeal stated that "There is no obligation on a trial judge to review each and every piece of evidence and compare it with other pieces of evidence. There is no obligation to review all the evidence. There is no obligation to state in detail why some evidence is preferred to others, provided it is clear the trial judge was aware of the evidence and his conclusions can be understood from the reasons that he provides" - See paragraph 13.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The plaintiff was injured in a low speed collision with the defendant - The trial judge awarded the plaintiff $10,478, comprised of, inter alia, $2,500 general damages - The plaintiff appealed, submitting that the trial judge did not provide sufficient reasons for finding that she sustained a minor whiplash injury and, that he erred in doing so because he did not perform a Farrell-type analysis of the evidence (Farrell v. Casavant, 2009 NSSC) - The Nova Scotia Court of Appeal stated that the question was not whether the trial judge provided a detailed Farrell-type analysis, but whether he applied the law - It was apparent from his own endorsement of Farrell that he did - The trial judge had already decided that the plaintiff's torn rotator cuff was not caused by the accident; he was left with a diagnosis of a soft tissue injury - It was clear that the plaintiff did not fit within the Farrell criteria - While the trial judge's conclusion could have been more articulate, he committed no error of law or fact in reaching it - See paragraphs 36 to 46.

Damages - Topic 1435

Special damages - Cost of housekeeping services - The plaintiff was injured in a low speed collision with the defendant - The trial judge awarded the plaintiff $10,478, comprised of $2,500 general damages $5,000 for loss of income, and special damages of $2,978 - The plaintiff appealed, submitting, inter alia, that the trial judge erred in assessing damages for loss of valuable services - The Nova Scotia Court of Appeal dismissed the ground of appeal - Assessment of damages was the province of the trial judge and could not be interfered with unless a wrong principle of law was applied or there was palpable or overriding error - Loss of valuable services could only be recovered if direct economic loss could be proved - At the end of the day, the plaintiff said she only needed help with cleaning the Jacuzzi and washing windows, jobs her son and husband helped with - The trial judge made a clear finding that the plaintiff's whiplash injury did not result in a loss of valuable services - See paragraphs 47 to 54.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - The plaintiff was injured in a low speed collision with the defendant - The trial judge awarded the plaintiff $10,478, comprised of, inter alia, $2,500 general damages - The plaintiff appealed, submitting, inter alia, that the trial judge erred in law in applying the law of causation in determining that the accident did not cause her shoulder injury and in assessing the medical evidence - The Nova Scotia Court of Appeal rejected the submissions - It was apparent from the trial judge's decision that he considered the medical evidence and was not satisfied that it established causation - He obviously preferred the defendant's expert opinion over the plaintiff's expert's opinion - There was a more than adequate evidentiary foundation for the trial judge's conclusions - He did not have to consider every piece of evidence which tended to a different conclusion - It was not for the Court of Appeal to retry the case - See paragraphs 7 to 35.

Cases Noticed:

MacIntyre v. Cape Breton District Health Authority (2011), 298 N.S.R.(2d) 223; 945 A.P.R. 223; 2011 NSCA 3, refd to. [para. 9].

Holland Carriers Ltd. et al. v. MacDonald et al. (2012), 316 N.S.R.(2d) 280; 1002 A.P.R. 280; 2012 NSCA 47, refd to. [para. 9].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 10].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 10].

Clements v. Clements (2012), 431 N.R. 198; 2012 SCC 32, refd to. [para. 10].

Van de Perre v. Edwards - see K.V.P. v. T.E.

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 13].

Pedherney v. Jensen et al. (2011), 499 A.R. 216; 514 W.A.C. 216; 2011 ABCA 9, refd to. [para. 31].

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271; 2002 NSCA 47, refd to. [para. 33].

Farrell v. Casavant (2009), 281 N.S.R.(2d) 283; 893 A.P.R. 283; 2009 NSSC 233, refd to. [para. 36].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 38].

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2012), 315 N.S.R.(2d) 201; 998 A.P.R. 201; 2012 NSCA 33, refd to. [para. 38].

S.R. v. Nova Scotia (Minister of Community Services) (2012), 317 N.S.R.(2d) 73; 1003 A.P.R. 73; 2012 NSCA 46, refd to. [para. 38].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 38].

Gillis v. MacKeigan (2010), 298 N.S.R.(2d) 149; 945 A.P.R. 149; 2010 NSCA 101, refd to. [para. 40].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 53].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 53].

L.M.M. v. Nova Scotia (Attorney General) (2011), 303 N.S.R.(2d) 243; 957 A.P.R. 243; 2011 NSCA 48, refd to. [para. 53].

Purdy Estate v. Morash, [2011] N.S.R.(2d) Uned. 295; 2011 NSCA 123, refd to. [para. 53].

Counsel:

Glenn E. Jones, for the appellant;

Michelle Kelly and Peter LeCain, for the respondent.

This appeal was heard in Halifax, N.S., on October 15, 2012, by Saunders, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following decision for the court on January 25, 2013.