Beaupré v. Rowan,

• Jurisdiction: New Brunswick
• Judge: Dionne, J.
• Neutral Citation: 2010 NBQB 110
• Citation: (2010), 355 N.B.R.(2d) 1 (TD),2010 NBQB 110,355 NBR(2d) 1,(2010), 355 NBR(2d) 1 (TD),355 N.B.R.(2d) 1
• Date: 31 March 2010
• Court: Court of Queen's Bench of New Brunswick (Canada)

Beaupré v. Rowan (2010), 355 N.B.R.(2d) 1 (TD);

    355 R.N.-B.(2e) 1; 917 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2010] N.B.R.(2d) TBEd. MR.057

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MR.057

Sylvio Beaupré (plaintiff) v. Robert Rowan (defendant)

(M/C/0592/06; 2010 NBQB 110; 2010 NBBR 110)

Indexed As: Beaupré v. Rowan

Répertorié: Beaupré v. Rowan

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Dionne, J.

March 31, 2010.

Summary:

Résumé:

The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction. He sued the defendant for damages.

The New Brunswick Court of Queen's Bench, Trial Division, held that both the plaintiff and defendant were responsible for the accident and apportioned liability equally between them. The court awarded damages of $661,228. The defendant was liable for $330,614, representing one-half of the total damages.

Damage Awards - Topic 56

Injury and death - Body injuries - Chest (incl. lungs and ribs) - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff underwent several surgeries - He suffered significant pain, nightmares and continued to have an abnormal gait and limp - The plaintiff's recreational activities were now limited to nil because they had either become inaccessible to him or were too complicated to pursue - He sued the defendant for damages - The New Brunswick Court of Queen's Bench, Trial Division, awarded the plaintiff general non-pecuniary damages of $100,000 - See paragraphs 217 to 267.

Damage Awards - Topic 59

Injury and death - Body injuries - Pelvis and pubic bones (incl. hip and urinary tract) - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 128

Injury and death - Leg injuries - Foot (incl. toes) - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 129

Injury and death - Leg injuries - Fibula or tibia - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 142

Injury and death - Leg injuries - Fracture - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 453

Injury and death - Special damage awards - Loss of wages - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff sued, seeking damages for, inter alia, lost wages between the accident (January 2006) and trial (April 2009) - The New Brunswick Court of Queen's Bench, Trial Division, found that the plaintiff's earning capacity between the accident and trial was $63,258 - The plaintiff's actual earnings were $8,500 - Accordingly, the plaintiff's past loss of earnings, stemming from his work accident, was fixed at $54,800 ($63,258 - $8,500) - See paragraphs 393 to 433.

Damage Awards - Topic 459

Injury and death - Special damage awards - Medical and hospital costs - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff sued for damages - The Province of New Brunswick made a subrogated claim for hospital and medical services provided to the plaintiff - The New Brunswick Court of Queen's Bench, Trial Division, found that there was a recoverable pecuniary loss of $30,200 and allowed the claim - See paragraphs 274 to 283.

Damage Awards - Topic 482

Injury and death - General damage awards - Global awards - [See Damage Awards - Topic 56 ].

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - During his two-week hospitalization, and for several months after being discharged from the hospital, the plaintiff was able to rely on the assistance of his spouse (Boudreau) - Boudreau assumed all of the domestic duties - She went with the plaintiff to his appointments for rehabilitation treatments and other treatments related to his convalescence - The plaintiff sued and claimed for, inter alia, loss of services, for the scope of support, for the absences from work and for all the appointments which Boudreau accompanied the plaintiff - The New Brunswick Court of Queen's Bench, Trial Division, allowed the claim and assessed the value of the care and other forms of assistance provided to the plaintiff by Boudreau at $5,000 - See paragraphs 284 to 295.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff sued, seeking damages for, inter alia, the cost of future medication, a recliner, a wheelchair, a scooter, hydraulic lift and vehicle modifications, walkers or canes, special shoes and an adapted home or residence - The New Brunswick Court of Queen's Bench, Trial Division, awarded damages of $3,300 for pain medication ($100 per year for ibuprofen), $300 for canes and $9,744 for special and adapted shoes ($295 per year) - The plaintiff had established that these claims were reasonable - All other claims were denied - Their need, in light of the plaintiff's degree of injury, was speculative at best - See paragraphs 302 to 367.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff sued, seeking damages for, inter alia, loss of future earning capacity - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff's future earning capacity but for the accident would have been $580,200, based on yearly income of $26,400 as a carpenter - While satisfied that the plaintiff would be able to work a bit more than 700 hours per year in the future, the court found that the plaintiff had retained an annual earning capacity that was equivalent to 700 hours of work at a normal level of productivity - Since the basis for calculating the plaintiff's residual annual earning capacity, which led to the figure of $192,049, assumed an annual working capacity of 700 hours at a productivity rate that was not reduced, the court found that the fact that the plaintiff would be able to work more than 700 hours per year was offset by the fact that his future productivity was reduced - The court considered the amount of $192,049 as the plaintiff's residual future earning capacity to be realistic and consistent with the evidence - Accordingly, the court awarded damages of $388,000 for loss of future earning capacity - See paragraphs 434 to 519.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - The plaintiff's fall caused him several injuries: "a pulmonary contusion, a left pneumothorax, a fracture of the first, second and third left ribs, a fracture of the left pubic ramus, a frontal contusion and several fractures of his right lower limb, including a comminuted fracture of the tibia involving its mid and distal third segments, a fracture of the mid third segment of the fibula, a comminuted fracture of the right calcaneus, and a low fracture of the fifth metatarsus of the right foot" - The plaintiff sued, seeking damages for, inter alia, loss of housekeeping capacity and parenting tasks - The New Brunswick Court of Queen's Bench, Trial Division, assessed the amount of general damages for non-pecuniary losses, past and future, relating to parental and housekeeping tasks that had become longer or more difficult for the plaintiff to carry out at the amount of $15,000 - As for the specific duties that were now completely out of reach for the plaintiff, including certain parenting duties, snow clearing and lawn mowing on sloped surfaces, roofing and other jobs performed at significant elevations with the help of a ladder, the court awarded a lump-sum current value of $10,000, covering the plaintiff's lifespan - See paragraphs 369 to 392.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - He sued the defendant for damages - At issue, inter alia, was the nature of the relationship between the parties - The defendant was the owner and the principal contractor for the construction of this house for use as his personal residence; this was the sixth or possibly seventh house that he was building for use as his personal residence; he was not, however, a professional home building contractor; he was responsible for the overall supervision of the work, and hired the people required; he had sole financial responsibility for the project; he purchased the building materials himself; he made the important decisions with regard to the construction; he decided the employees' working days and their hours of work; he was responsible for site security and safety; he decided what work would be done and when it would be done; he provided the air compressor for the nailing machine; he provided the system of planks and brackets; he did not contract out or sole-source the roof building for his house; and he gave instructions to the plaintiff with respect to the manner in which to perform certain tasks - The plaintiff was officially an employment insurance recipient having been laid off on a seasonal basis from his employment with his most recent employer; he was paid based on hours worked for the defendant ($12 per hour); he supplied his own tools; he worked approximately 153 hours on the defendant's work site; before late November 2005, he only made himself available to the defendant on evenings and weekends because he was not a regular employee; and he performed services for the defendant on a fairly regular basis from late November 2005 to the date of the accident - The New Brunswick Court of Queen's Bench, Trial Division, held that there were enough ingredients in the relationship between the plaintiff and the defendant for it to be considered an employer-employee relationship - See paragraphs 83 to 106.

Master and Servant - Topic 5661

Liability of master to servant - Negligence - General - The plaintiff was injured in a work accident when he fell from the roof while doing some roofing on a house under construction - He sued the defendant for damages - The New Brunswick Court of Queen's Bench, Trial Division, held that both the plaintiff and defendant were responsible for the accident and apportioned liability equally between them - The defendant had a duty to recognize the hazards (snow covered and slippery roof) and take reasonable preventative and cautionary measures for the plaintiff's safety - The defendant did not meet this standard of care - Further, the plaintiff did not live up to his duty to see to his own safety - Accordingly, on the basis of s. 1(1) of the Contributory Negligence Act, the plaintiff was also at fault, and thereby contributed to his own damage and loss, by "(1) omitting to identify or perceive the extent of an obvious risk; (2) omitting to take measures for his own safety; (3) agreeing to be on a hip of the defendant's roof without taking the initiative to get equipped with a personal safety harness, intended to prevent falling to the ground, and duly secured to a retention cable" - It was appropriate to apportion liability - See paragraphs 78 to 216.

Torts - Topic 38

Negligence - Standard of care - Particular persons and relationships - Employers (master and servant) - [See Master and Servant - Topic 5661 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General (incl. breach of contract cases) - [See Master and Servant - Topic 5661 ].

Torts - Topic 6630

Defences - Contributory negligence - Particular cases - Failure to use safety equipment (incl. seat belts) - [See Master and Servant - Topic 5561 ].

Délits civils - Cote 38

Négligence - Norme de conduite - Personnes et relations particulières - Employeurs - [Voir Torts - Topic 38 ].

Délits civils - Cote 6603

Défenses - Négligence contributive - Généralités - Partage de la responsabilité - Généralités (y compris les cas de violation de contrat) - [Voir Torts - Topic 6603 ].

Délits civils - Cote 6630

Défenses - Négligence contributive - Cas particulières - Omission d'utiliser l'équipement de sécurité (y compris les ceintures de sécurité) - [Voir Torts - Topic 6630 ].

Employeurs et employés - Cote 303

Nature de la relation - En quoi consiste la relation employeur-employée - [Voir Master and Servant - Topic 303 ].

Employeurs et employés - Cote 5661

Responsabilité de l'employeur envers l'employé - Négligence - Généralités - [Voir Master and Servant - Topic 5661 ].

Évaluation des dommages-intérêts - Cote 56

Blessures et décès - Blessures au tronc - Thorax (y compris les poumons et les côtes) - [Voir Damages Awards - Topic 56 ].

Évaluation des dommages-intérêts - Cote 59

Blessures et décès - Blessures au tronc - Bassin et os pubiens (y compris la hanche et voie urinaire) - [Voir Damage Awards - Topic 59 ].

Évaluation des dommages-intérêts - Cote 125

Blessures et décès - Blessures à la jambe - Cheville - [Voir Damage Awards - Topic 125 ].

Évaluation des dommages-intérêts - Cote 128

Blessures et décès - Blessures à la jambe - Pied (y compris les orteils) - [Voir Damage Awards - Topic 128 ].

Évaluation des dommages-intérêts - Cote 129

Blessures et décès - Blessures à la jambe - Tibia ou péroné - [Voir Damage Awards - Topic 129 ].

Évaluation des dommages-intérêts - Cote 142

Blessures et décès - Blessures à la jambe - Fracture - [Voir Damage Awards - Topic 142 ].

Évaluation des dommages-intérêts - Cote 453

Blessures et décès - Évaluation des dommages-intérêts particuliers - Perte de salaire - [Voir Damage Awards - Topic 453 ].

Évaluation des dommages-intérêts - Cote 459

Blessures et décès - Évaluation des dommages-intérêts particuliers - Frais médicaux et hospitaliers - [Voir Damage Awards - Topic 459 ].

Évaluation des dommages-intérêts - Cote 482

Blessures et décès - Évaluation des dommages-intérêts généraux - Indemnisation globale - [Voir Damage Awards - Topic 482 ].

Évaluation des dommages-intérêts - Cote 487.1

Blessures et décès - Évaluation des dommages-intérêts généraux - Services nécessaires fournis par la famille - [Voir Damage Awards - Topic 487.1 ].

Évaluation des dommages-intérêts - Cote 489

Blessures et décès - Évaluation des dommages-intérêts généraux - Coût des soins et traitements futurs - [Voir Damage Awards - Topic 489 ].

Évaluation des dommages-intérêts - Cote 492

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de capacité de gain - [Voir Damage Awards - Topic 492 ].

Évaluation des dommages-intérêts - Cote 495

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de capacité d'entretien ménager - [Voir Damage Awards - Topic 495 ].

Cases Noticed:

Joey's Delivery Service v. Workplace Health, Safety and Compensation Commission (N.B.) (2001), 239 N.B.R.(2d) 300; 619 A.P.R. 300 (C.A.), refd to. [para. 97].

Bennett v. Cunningham, [2006] O.T.C. 1033 (Sup. Ct.), refd to. [para. 101].

Proenca v. Squires Home Improvements & Total Renovations Ltd. et al., [2000] N.B.R.(2d) (Supp.) No. 19 (T.D.), refd to. [para. 101].

Proenca v. Squire's Home Improvements and Total Renovations Ltd., [2000] N.B.R.(2d) (Supp.) No. 81 (T.D.), refd to. [para. 101].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 108].

Regal Oil & Refining Co. et al. v. Campbell, [1936] S.C.R. 309, refd to. [para. 109].

Canadian Northern Railway Co. v. Anderson (1911), 45 S.C.R. 355, refd to. [para. 110].

Veronneau v. Gregory (1979), 11 B.C.L.R. 121 (S.C.), refd to. [para. 111].

Clayton v. Woodman & Son (Builders) Ltd., [1962] 2 Q.B. 533; [1962] 1 W.L.R. 585 (C.A.), refd to. [para. 112].

Arland v. Taylor, [1955] O.R. 131; [1955] 3 D.L.R. 358 (C.A.), refd to. [para. 116].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 116].

Peters v. Peters et al. (1983), 51 N.B.R.(2d) 133; 134 A.P.R. 133 (T.D.), refd to. [para. 117].

Overseas Tankships (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound), [1967] 1 A.C. 617 (P.C.), refd to. [para. 121].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 121].

Price v. Price et al. (2004), 276 N.B.R.(2d) 65; 724 A.P.R. 65 (T.D.), refd to. [para. 125].

Wiens v. Serene Lea Farms Ltd. et al., [2000] B.C.T.C. 653; 2000 BCSC 1306, refd to. [para. 127].

Cleghorn v. Dunbar (2005), 285 N.B.R.(2d) 163; 744 A.P.R. 163 (T.D.), refd to. [para. 264].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315 (C.A.), refd to. [para. 264].

Lee v. Hunter (1998), 84 O.T.C. 376 (Gen. Div.), refd to. [para. 264].

Lewis v. MacWilliam (1999), 208 N.B.R.(2d) 359; 531 A.P.R. 359 (T.D.), refd to. [para. 264].

Trites v. Steeves (2005), 285 N.B.R.(2d) 182; 744 A.P.R. 182; 2005 NBQB 242, refd to. [para. 264].

Robichaud v. Succession Godin (1994), 152 N.B.R.(2d) 134; 390 A.P.R. 134 (T.D.), refd to. [para. 265].

Henhawk v. Brantford (City), [2005] O.T.C. 1028; 2005 CarswellOnt 6955 (Sup. Ct.), refd to. [para. 265].

Lambert v. Fort William Indian Band, [2006] O.T.C. Uned. D10; 2006 CarswellOnt 8027 (Sup. Ct.), refd to. [para. 265].

Meise v. Whiting, [2002] B.C.T.C. 352; 2002 CarswellBC 518 (S.C.), refd to. [para. 265].

Chiasson v. Chiasson (2008), 326 N.B.R.(2d) 282; 838 A.P.R. 282 (C.A.), refd to. [para. 266].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 266].

Pelletier et al. v. Ouellette et al. (2003), 258 N.B.R.(2d) 218; 676 A.P.R. 218 (T.D.), refd to. [para. 293].

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66; 681 A.P.R. 66 (C.A.), refd to. [para. 302].

Malat Estate v. Bjornson, [1979] B.C.J. No. 425 (S.C.), refd to. [para. 361].

Aberdeen v. Langley (Township) et al., [2007] B.C.T.C. Uned. D83 (S.C.), refd to. [para. 361].

C.R. et al. v. Morana et al. (1997), 53 O.T.C. 168 (Sup. Ct.), affd. (2000), 135 O.A.C. 123 (C.A.), refd to. [para. 361].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 361].

Sinclair v. Dines (2005), 279 N.B.R.(2d) 227; 732 A.P.R. 227 (C.A.), refd to. [para. 383].

Cleary v. McCluskey (2002), 252 N.B.R.(2d) 10; 658 A.P.R. 10; 2002 NBCA 45, refd to. [para. 439].

Price v. Price, 2005 NBQB 435, refd to. [para. 442].

Authors and Works Noticed:

Linden, Allen M., Canadian Tort Law (4th Ed. 1988), generally [para. 78]; pp. 89 [para. 79]; 94 [para. 114].

Counsel:

Avocats:

André Richard, Q.C., Charles LeBlond, Q.C., and Tracey K. DeWare, for the plaintiff;

Bruce D. Grant, for the defendant.

This action was heard on July 21-25, 2008, and April 20-24, 2009, with post-trial submissions filed in June 2009, by Dionne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment, in both official languages, on March 31, 2010.