Burkhardt v. Gawdun et al., (2003) 231 Sask.R. 134 (QB)

• Judge: G.A. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 05, 2003
• Jurisdiction: Saskatchewan
• Citations: (2003), 231 Sask.R. 134 (QB);2003 SKQB 100

Burkhardt v. Gawdun (2003), 231 Sask.R. 134 (QB)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. MR.045

Stacey Burkardt (plaintiff) v. George Gawdun and Saskatchewan Government Insurance (defendants)

(1995 Q.B. No. 3153; 2003 SKQB 100)

Indexed As: Burkhardt v. Gawdun et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

G.A. Smith, J.

March 5, 2003.

Summary:

The plaintiff sued the defendant for damages suffered in a motor vehicle accident. The defendant admitted liability for the accident, but argued that the plaintiff's claim was precluded by a final release executed by the plaintiff, for which she received $4,500. The plaintiff sought to have the release set aside and added the defendant's insurer as a defendant.

The Saskatchewan Court of Queen's Bench rescinded the release. The court allowed the plaintiff's action and assessed her damages.

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Sprains, tears and soft tissue injuries - The plaintiff suffered a minor soft tissue injury to her lower back in a motor vehicle accident - She was involved in two subsequent accidents, which she claimed did not affect her lower back - Her lower back injury never disabled her from working - However, the problem persisted for over seven years and at the date of trial continued to cause minor discomfort and stiffness, necessitating some pain medication and regular exercise to control the symptoms and restricting some of her physical activities - The injury was likely permanent - The Saskatchewan Court of Queen's Bench awarded the plaintiff $20,000 general damages - See paragraphs 42 to 63.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff was injured in a motor vehicle accident - She sought damages for loss of earning capacity, claiming that her injuries prevented her from pursuing her dream of becoming a police officer - The Saskatchewan Court of Queen's Bench held that "the plaintiff established a real and reasonable possibility that she would have been successful in applying to be a police officer but for her injury, even though the evidence showed that this was not more likely than not" - The plaintiff did not establish the extent of lost earnings that should be associated with this lost opportunity, because she failed to prove that she was unable to earn more than what she was earning at the time of trial - However, it was probable that she would never earn a salary that she would have as a police officer - The Court awarded her $20,000 for loss of earning capacity - See paragraphs 64 to 84.

Damages - Topic 1527

General damages - Elements of general damages - Loss of opportunity - [See Damage Awards - Topic 492 ].

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - The Saskatchewan Court of Queen's Bench stated that "It is clear that the onus of proof which rests with the plaintiff with respect to loss of future earning capacity is one of reasonable possibility rather than balance of probabilities. However, the plaintiff must establish a reasonable and not merely a speculative possibility." - See paragraph 83.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - [See Damage Awards - Topic 492 ].

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The plaintiff sued for damages suffered in a 1994 motor vehicle accident - The defendant argued that the plaintiff had executed a release - The plaintiff challenged the release's validity - The plaintiff testified that a representative of the defendant's insurer told her that she could not receive benefits for a 1995 accident unless she signed the release for the 1994 accident - In her testimony, the representative denied the plaintiff's version of events - The plaintiff argued the representative's evidence on the issue should be excluded because defence counsel had failed, while cross-examining the plaintiff, to directly challenge the plaintiff's account of events (the rule in Brown v. Dunn) - The Saskatchewan Court of Queen's Bench held that the rule, which was not an absolute exclusionary rule, should not be applied in this case - The plaintiff had a full and fair opportunity to present her version of events and knew that the representative would offer a conflicting version - See paragraphs 13 and 14.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The plaintiff claimed, inter alia, that she suffered a herniated disc in a motor vehicle accident - In a letter to the plaintiff's counsel, Griebel, a neurosurgeon, opined that it was impossible to attribute the herniated disc to the accident - Following the letter, the plaintiff's counsel and Griebel exchanged correspondence - The defendant objected to having Griebel qualified to give expert evidence on the basis of the correspondence - The defendant argued that some of the correspondence put inadmissible evidence to Griebel and was argumentative, rendering him incapable of giving an unbiased and objective expert opinion - The Saskatchewan Court of Queen's Bench held that the plaintiff was entitled to put to its expert a hypothetical based on the evidence it expected to present at trial and the correspondence did not preclude receiving expert evidence from Griebel - However, the tone of the correspondence was argumentative and insistent, which would be taken into account in weighing Griebel's opinion - See paragraphs 46 to 52.

Evidence - Topic 7013

Opinion evidence - Expert evidence - General - Use of hypothetical questions - [See Evidence - Topic 7002 ].

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See Evidence - Topic 7002 ].

Insurance - Topic 3745

Automobile insurance - Insurers - Settlement agreements - Unconscionability - The plaintiff was injured in a 1994 motor vehicle accident involving the defendant - The plaintiff met with a representative of the defendant's insurer and executed a release in relation to the accident - The plaintiff sued the defendant and challenged the release's validity - The Saskatchewan Court of Queen's Bench set aside the release, holding that it was an improvident bargain - It purported to settle the plaintiff's claim when the representative knew that her prognosis was uncertain and months before any settlement decision was necessary - Further, an inequality of bargaining power resulted from the representative's experience as an adjuster and her assumed role as counsellor to the plaintiff respecting settlement, the plaintiff's evident distress and discomfort at their meeting and the fact that the representative mislead the plaintiff to believe that it was necessary to settle the 1994 claim in order to obtain benefits for another accident in 1995 - The plaintiff relied on the representative's advice - See paragraphs 13 to 40.

Practice - Topic 9857

Settlements - Setting aside - Grounds - [See Insurance - Topic 3745 ].

Releases - Topic 3403

Grounds of invalidity - Unconscionability -[See Insurance - Topic 3745 ].

Cases Noticed:

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 13].

Hamm v. Metz et al., [2002] 6 W.W.R. 30; 217 Sask.R. 1; 265 W.A.C. 1 (C.A.), refd to. [para. 13].

Morrison v. Coast Finance Ltd. (1965), 54 W.W.R.(N.S.) 257 (B.C.C.A.), refd to. [para. 31].

Sperling Estate v. Heidt (1999), 178 Sask.R. 192 (Q.B.), affd. (2000), 199 Sask.R. 256; 232 W.A.C. 256 (C.A.), refd to. [para. 31].

Dolter v. Media House Productions Inc. et al. (2002), 220 Sask.R. 271 (Q.B.), refd to. [para. 31].

Dolter v. Media House Productions Inc. et al. (2002), 227 Sask.R. 153; 287 W.A.C. 153 (C.A.), refd to. [para. 31].

Smyth v. Szep, [1992] 2 W.W.R. 673; 10 B.C.A.C. 108; 21 W.A.C. 108 (C.A.), refd to. [para. 35].

Gindis v. Brisbourne, [2000] 3 W.W.R. 656; 133 B.C.A.C. 66; 217 W.A.C. 66 (C.A.), refd to. [para. 36].

McCullough v. Hilton (1998), 110 B.C.A.C. 293; 178 W.A.C. 293; 63 B.C.L.R.(3d) 272 (C.A.), refd to. [para. 36].

Blackburn v. Eager et al. (2002), 203 N.S.R.(2d) 77; 635 A.P.R. 77 (C.A.), refd to. [para. 37].

Gilson v. Lekach, [1996] 6 W.W.R. 90; 140 Sask.R. 81 (Q.B.), refd to. [para. 63].

Villeneuve v. Kowbel, [1995] 7 W.W.R. 629; 133 Sask.R. 104 (Q.B.), refd to. [para. 63].

Gorrill v. White et al. (1991), 98 Sask.R. 38 (Q.B.), refd to. [para. 63].

Knor v. Fehr (1997), 210 A.R. 33 (Q.B.), refd to. [para. 63].

Doerksen v. Koo, [1994] B.C.W.L.D. 1009 (S.C.), refd to. [para. 63].

Gallagher v. Olsson et al., [2001] B.C.T.C. Uned. 205; 2001 CarswellBC 1393 (S.C.), refd to. [para. 63].

Bouchard v. Kirstein, Nagel and Mang (1983), 25 Sask.R. 79 (C.A.), refd to. [para. 63].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 78].

Pallos v. Insurance Corp. of British Columbia, [1995] 3 W.W.R. 728; 53 B.C.A.C. 310; 87 W.A.C. 310; 100 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 79].

Graff v. Bennett and Thompson, [1995] 9 W.W.R. 609; 134 Sask.R. 161; 101 W.A.C. 161 (C.A.), refd to. [para. 80].

Seip v. South Saskatchewan Hospital Centre (1992), 97 Sask.R. 39; 12 W.A.C. 39 (C.A.), refd to. [para. 81].

Conklin v. Smith et al., [1978] 2 S.C.R. 1107; 22 N.R. 140, refd to. [para. 81].

Daigle v. Theo Couturier Ltd. and Jessome (1973), 6 N.B.R.(2d) 679; 43 D.L.R.(3d) 151 (C.A.), refd to. [para. 82].

Freitag v. Davis, [1984] 6 W.W.R. 188 (B.C.C.A.), refd to. [para. 82].

Bunce v. Flick et al. (1991), 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), refd to. [para. 82].

Dagenais v. Glombowski (1987), 56 Sask.R. 60 (Q.B.), refd to. [para. 82].

Demyen v. Sirounis (1990), 82 Sask.R. 1 (Q.B.), varied (1991), 93 Sask.R. 66; 4 W.A.C. 66 (C.A.), refd to. [para. 83].

Counsel:

Terry J. Zakreski, for the plaintiff;

Robert J. Gibbings, Q.C., for the defendants.

This action was heard by G.A. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on March 5, 2003.