Brown and VanderSchee v. MacDonald, (1979) 37 N.S.R.(2d) 1 (TD)

• Judge: Grant, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 24, 1979
• Jurisdiction: Nova Scotia
• Citations: (1979), 37 N.S.R.(2d) 1 (TD)

Brown v. MacDonald (1979), 37 N.S.R.(2d) 1 (TD);

    67 A.P.R. 1

MLB headnote and full text

Brown and Vanderschee v. MacDonald

(S.A.T. 00179)

Indexed As: Brown and VanderSchee v. MacDonald

Nova Scotia Supreme Court

Trial Division

Grant, J.

July 24, 1979.

Summary:

This case arose out of the plaintiffs' claim against the defendant for damages arising out of a motor vehicle collision. The Nova Scotia Supreme Court, Trial Division, allowed the plaintiffs' action in part and found both the plaintiff motorcycle rider and the defendant truck driver equally at fault. The Trial Division in both judgments reported below assessed the plaintiffs' damages for personal injuries.

Damage Awards - Topic 129

Personal injuries and death - Leg injuries - Fracture of tibia and fibula - Severe laceration of leg and partial tear of patellar tendon - Scarring - Complete recovery - 27 year old single female, subsequently married - The Nova Scotia Supreme Court, Trial Division, assessed $3500 general damages for personal injuries, not including loss of income - See paragraphs 112 to 146.

Damage Awards - Topic 150

Personal injuries and death - Multiple injuries - Moderate concussion, open comminuted fracture of left wrist, closed comminuted fracture of right wrist, comminuted fracture of femur, fracture of pelvis and lacerations to scalp, face and thigh - Surgical repair of left wrist and femur required - Loss of some rotation and flexion of wrists - Disability for physical activity requiring lengthy periods of walking or standing - Lengthy convalescence - Adult male engineer - The Nova Scotia Supreme Court, Trial Division, assessed $33,500 non-pecuniary general damages for personal injuries - See paragraphs 67 to 103.

Evidence - Topic 2401

Presumptions - Inference from failure to call available evidence - The plaintiffs, who were the driver and a passenger of a motorcycle, were injured in a motor vehicle accident - At trial the driver testified about how the accident occurred, but the passenger did not - The Nova Scotia Supreme Court, Trial Division, drew an inference from the passenger's failure to testify that her evidence would have been adverse to her claim - See paragraphs 54 to 59.

Evidence - Topic 2401

Presumptions - Inference from failure to call available evidence - The two injured plaintiffs failed to provide their income tax returns as requested in order to assist in the assessment of damages for loss of income - The Nova Scotia Supreme Court, Trial Division, inferred that the income tax returns would be adverse to the plaintiff's claims - See paragraphs 129 to 133.

Evidence - Topic 2702

Inspections - Inspection or view out of court - The Nova Scotia Supreme Court, Trial Division, took a view of an intersection where an accident occurred, stating that such a view is helpful, especially where no sketch or plan of the intersection was in evidence - See paragraphs 3 to 4 and 27 to 28.

Evidence - Topic 4727

Witnesses - Impeaching credibility - Effect of impeachment - At the trial of the plaintiff's claim for damages resulting from a motor vehicle collision it was proved that the plaintiff attempted to convince a witness to the accident to lie - As a result, the Nova Scotia Supreme Court, Trial Division, doubted the plaintiff's credibility in general and in particular refused to believe his uncorroborated testimony that he had amnesia respecting the circumstances of the accident - See paragraphs 35 to 54 and 59.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Conduct - At the trial of the plaintiff's action for damages resulting from a motor vehicle collision it was proved that the plaintiff attempted to get a witness to the accident to lie - The Nova Scotia Supreme Court, Trial Division, allowed the plaintiff's action in part, but deprived him of costs, because of his attempt to deceive the court - See paragraphs 105 to 110.

Torts - Topic 439

Negligence - Motor vehicle - Rules of the road - Intersections - Left turns - Right-of-way - The defendant driver stopped in the lane for vehicles making a left-hand turn in an intersection to wait for oncoming traffic to pass - As he moved forward to make his turn, he was struck by an oncoming motorcycle - The Nova Scotia Supreme Court, Trial Division, held the defendant 50% at fault, because his vehicle was slightly in the oncoming lane when it was struck by the motorcycle - The motorcycle rider was found 50% at fault for travelling too fast and without due care and attention - See paragraphs 1 to 66.

Cases Noticed:

Stewart v. Sheldrake and Simonson (1978), 22 N.S.R.(2d) 279; 31 A.P.R. 279, refd to. [para. 64].

Garrison v. Lively et al. (1978), 28 N.S.R.(2d) 557; 43 A.P.R. 557, folld. [para. 95].

Wilson v. Marcoux (1976), 13 N.B.R.(2d) 615; 13 A.P.R. 615, consd. [para. 106].

Ireton v. Heizer et al., [1971] 3 W.W.R. 77, folld. [para. 108].

Brown v. Roque (1947), 2 O.R.(2d) 100, refd to. [para. 109].

Bent v. Nova Scotia Farm Loan Board et al. (1979), 30 N.S.R.(2d) 552; 49 A.P.R. 552, appld. [para. 110].

McNutt v. Registrar of Motor Vehicles (1978), 25 N.S.R.(2d) 496; 36 A.P.R. 496, consd. [para. 144].

Tanner v. Soukenik (1977), 19 N.S.R.(2d) 268; 24 A.P.R. 268, consd. [para. 144].

O'Connell v. Dobson (1976), 15 N.S.R.(2d) 694; 14 A.P.R. 694, consd. [para. 144].

Atkinson v. Blenkhorn (1976), 14 N.S.R.(2d) 530; 11 A.P.R. 530, consd. [para. 144].

Frizzell and Frizzell v. Crowell et al. (1976), 16 N.S.R.(2d) 30; 16 A.P.R. 30, consd. [para. 144].

Guy v. Trizec Equities Limited et al., 26 N.S.R.(2d) 1; 40 A.P.R. 1, appld. [para. 146].

Statutes Noticed:

Contributory Negligence Act, R.S.N.S. 1967, c. 54, sect. 1(1) [para. 65].

Evidence Act, R.S.N.S. 1967, c. 94, sect. 22 [paras. 87, 89].

Counsel:

William F. Meehan and Richard J. MacKinnon, for the plaintiffs;

Clarence A. Beckett, for the defendant.

This case was heard on April 11 and 12 and June 6 and 25, 1979, at Antigonish, Nova Scotia, before GRANT, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on July 24, 1979: