Bulmer v. Horsman, (1987) 82 N.B.R.(2d) 107 (CA)

• Judge: Angers, Hoyt and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 16, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 82 N.B.R.(2d) 107 (CA);1987 CanLII 107 (NB CA);82 NBR (2d) 107;42 CCLT 220;[1987] NBJ No 818 (QL);208 APR 107;3 MVR (2d) 92

Bulmer v. Horsman (1987), 82 N.B.R.(2d) 107 (CA);

    82 R.N.-B.(2e) 107; 208 A.P.R. 107

MLB headnote and full text

[French language version follows English language version]

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

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Douglas Horsman and Allan Horsman (defendants/appellants) v. David Bulmer, by his next friend, Phyllis Bulmer (plaintiff/respondent)

(22/86/CA)

Indexed As: Bulmer v. Horsman

New Brunswick Court of Appeal

Angers, Hoyt and Rice, JJ.A.

September 17, 1987.

Summary:

The plaintiff, an 18 year old boy, was injured when the car in which he was a passenger failed to negotiate a right turn, crossed the highway and struck a telephone pole. Both the driver and the plaintiff were drinking prior to the accident. The plaintiff suffered a severe head injury, resulting in recent memory loss and forgetfulness. The plaintiff brought an action against the driver and owner of the automobile for damages.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 68 N.B.R.(2d) 31; 175 A.P.R. 31, allowed the plaintiff's action. The court held that the defendant driver was 75% at fault, but that the plaintiff was 25% at fault for consenting to drive with the driver, knowing that he was impaired. The court declined to award general damages for nonpecuniary loss, because the plaintiff made no such claim; however, the court provisionally assessed such damages at $20,000.00. The court also made an award of damages for lost past and future earnings. The defendants appealed; the passenger cross-appealed.

The New Brunswick Court of Appeal allowed the appeal in part and allowed the cross-appeal. The court affirmed the award of damages for lost past and future earnings, awarded general damages of $40,000.00 for nonpecuniary loss and held that the passenger was not contributorily negligent for driving with the defendant driver.

Damage Awards - Topic 102

Head injuries - Brain damage - 18 year old boy suffered, inter alia, a moderately severe head injury, resulting in loss of recent memory, lack of concentration and forgetfulness - Plaintiff now impatient, insecure, withdrawn, subject to bouts of anxiety, depression and boredom; easily irritated and tired - Basic intelligence not impaired, thus plaintiff recognized his disabilities and personality changes, causing further aggravation - Suffered psychologically in that he recognized his reduced abilities - Uncertain future - The trial judge refused to award general damages for nonpecuniary loss, but provisionally assessed them at $20,000.00 - The New Brunswick Court of Appeal awarded the boy $40,000.00 - See paragraphs 30 to 39.

Damage Awards - Topic 150

Multiple injuries - 18 year old boy suffered a moderately severe head injury, resulting in loss of recent memory, lack of concentration, forgetfulness and personality changes - Also suffered a broken tooth, exposing the nerve, requiring 20 visits to dentist - Dislocation of right shoulder, requiring surgery - Disfigurement of upper right arm, causing extreme itching and requiring cast periodically - Damage to bone in right middle ear, requiring reconstructive surgery, resulting in permanent 15-20% loss of hearing and ringing noise - The trial judge refused to award general damages for nonpecuniary loss, but provisionally assessed them at $20,000.00 - The New Brunswick Court of Appeal awarded the plaintiff $40,000.00 - See paragraphs 30 to 39.

Damages - Topic 1550

General damages - For personal injury - Prospective loss of wages or earnings - An 18 year old boy newly graduated from high school and uncertain of his future suffered a severe head injury, resulting in recent memory loss, lack of concentration and forgetfulness - Actuarial evidence was based on the assumption that the boy would have become a tradesman, but was now limited to work offering less pay - The New Brunswick Court of Appeal affirmed the trial judge's assessment of lost past and future earnings - The court held that the trial judge was not wrong in accepting the actuarial evidence - See paragraphs 12 to 29.

Damages - Topic 1550.1

General damages - For personal injury - Pretrial loss of wages or earnings - [See Damages - Topic 1550 above].

Damages - Topic 1684

General damages - Evidence - Actuarial evidence - The New Brunswick Court of Appeal held that when calculating lost past and future earnings, actuarial opinions, provided their assumptions are grounded in fact, are as useful when a partial loss is at issue as when a person is totally disabled - A person who has not been employed can be the subject of actuarial opinion - See paragraphs 27 to 28.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - The New Brunswick Court of Appeal stated that there is no obligation on a trial judge to automatically accept expert evidence - See paragraph 22.

Torts - Topic 348

Negligence - Motor vehicle - Passengers - Contributory negligence - Driving with drunk driver - A trial judge found an 18 year old passenger 25% contributorily negligent for driving with a driver who had consumed 5-6 beer at a party attended by both - The driver's driving was grossly negligent - The New Brunswick Court of Appeal held that the evidence neither indicated that the driver was impaired (his blood-alcohol levels were .09 and .10) nor what the driver's condition was when the passenger accepted a drive - The court held that the driver did not meet the onus of establishing that the passenger contributed to the increased likelihood of being injured by taking inadequate precautions for his own safety - See paragraphs 2, 53 to 57.

Torts - Topic 348

Negligence - Motor vehicle - Passengers - Contributory negligence - Driving with drunk driver - The New Brunswick Court of Appeal discussed contributory negligence in drinking driver/willing passenger situations, including the concept of apportionment of damages in proportion to the degree of fault - See paragraphs 3 to 7, 41 to 52.

Torts - Topic 6603

Defences - Contributory negligence - Apportionment of fault - General - [See second Torts - Topic 348 above].

Cases Noticed:

Ward v. Hachey (1984), 54 N.B.R.(2d) 335; 140 A.P.R. 335, refd to. [para. 6].

Holian v. United Grain Growers Ltd., [1980] 5 W.W.R. 501; 4 Man.R.(2d) 253 (C.A.), refd to. [para. 22].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 22].

Gehrmann et al. v. Lavoie (1976), 6 N.R. 570; 59 D.L.R.(3d) 634 (S.C.C.), refd to. [para. 22].

Floyd v. Bowers (1978), 89 D.L.R.(3d) 559 (Ont. H.C.), refd to. [para. 28].

Bogusinski v. Rashidagich, [1974] 5 W.W.R. 53 (B.C.), refd to. [para. 28].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, refd to. [para. 28].

Eid v. Dumas (1969), 1 N.B.R.(2d) 445, refd to. [para. 41].

Spracklin v. O'Flaherty's Estate (1977), 15 Nfld. & P.E.I.R. 488; 38 A.P.R. 488 (Nfld. S.C.T.D.), refd to. [para. 42].

Leaman v. Rae (1954), 35 M.P.R. 125 (N.B.C.A.), refd to. [para. 44].

Wotta v. Haliburton Oil, [1955] S.C.R. 377, refd to. [para. 44].

Dubé v. Labar (1986), 68 N.R. 91 (S.C.C.), refd to. [para. 44].

Froom v. Butcher, [1976] Q.B. 286, refd to. [para. 45].

Beaulieu and Sirois v. Ouellette (1976), 13 N.B.R.(2d) 679; 13 A.P.R. 679, consd. [para. 51].

Boulet and Boulet v. Bellefleur and Bérubé (1979), 24 N.B.R.(2d) 11; 48 A.P.R. 11, consd. [para. 52].

Taylor et al. v. Nicholson et al. (1986), 70 N.B.R.(2d) 183; 179 A.P.R. 183, consd. [para. 52].

Statutes Noticed:

Contributory Negligence Act, R.S.N.B. 1973, c. C-19, generally [para. 43].

Law Reform (Contributory Negligence) Act 1945 (Eng.), 8 & 9 Geo. 6, c. 28, sect. 1(1) [para. 43].

Counsel:

Philip C. Mix, for the appellants;

Gregory E. Murphy, for the respondent.

This appeal and cross-appeal were heard before Angers, Hoyt and Rice, JJ.A., of the New Brunswick Court of Appeal on February 16, 1987. The decision of the Court of Appeal was delivered on September 17, 1987, when the following opinions were filed:

Angers, J.A. - see paragraphs 1 to 7;

Hoyt, J.A. - see paragraphs 8 to 59;

Rice, J.A. - see paragraph 60.