Fillier v. Whittom, (1995) 171 N.B.R.(2d) 92 (CA)

• Judge: Hoyt, C.J.N.B., Turnbull and Bastarache, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: December 04, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 171 N.B.R.(2d) 92 (CA)

Fillier v. Whittom (1995), 171 N.B.R.(2d) 92 (CA);

    171 R.N.-B.(2e) 92; 437 A.P.R. 92

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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Irene Mae Fillier (plaintiff/appellant) v. Jean Whittom (defendant/respondent)

(128/95/CA)

Indexed As: Fillier v. Whittom

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Turnbull and Bastarache, JJ.A.

December 4, 1995.

Summary:

The plaintiff driver sued the defendant driver for damages for injuries suffered in a motor vehicle accident.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 161 N.B.R.(2d) 241; 414 A.P.R. 241, held that both drivers were at fault; appor­tioned liability 2/3 - 1/3 in favour of the plaintiff; and assessed dam­ages. The plaintiff appealed and the defen­dant cross-appealed.

The New Brunswick Court of Appeal dismissed the appeal and the cross-appeal.

Damage Awards - Topic 178

Injury and death - Neck injuries - Whip­lash - A 43 year old supermarket cashier suffered a whiplash injury in a motor vehicle accident - Acute pain for eight weeks - Two periods of physiotherapy - Pain in her lower back continued and she resisted going back to work - Difficulty lifting heavy objects - She curtailed her sideline businesses of lawn ornament production and dog raising and grooming - Suffered from lower back pain before the accident - The trial judge awarded $25,000 nonpecuniary general damages - The New Brunswick Court of Appeal affirmed the award - See paragraphs 29 to 31.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - A 43 year old supermarket cashier suffered a moder­ate whiplash in a motor vehicle accident - She resisted returning to work, claiming severe pain in lower back - She curtailed her sideline businesses; discontinuing a lawn ornament production business and limiting a dog raising and grooming busi­ness to small dogs - History of lower back pain prior to the accident - The trial judge assessed $20,000 damages for loss of future income and diminished earning capacity - The plaintiff did not establish that she could not return to work and that the lower back pain was accident-related -The New Brunswick Court of Appeal affirmed the award - See paragraphs 26 to 28.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that a wit­ness is an expert - A plaintiff submitted that a doctor should not have been qual­ified as an expert in the field of clinical and anatomical pathology and family medicine because the College of Phys­icians and Surgeons had not certified him in any specialty - The New Brunswick Court of Appeal rejected the ground of appeal.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that a wit­ness is an expert - The New Brunswick Court of Appeal stated that "[t]o become an expert for the purpose of giving opinion evidence at a trial does not necessarily require a specific professional or occupa­tional designation. Rather, it is the pro­posed expert's training and experience and the ability to relate that experience and training to the issue before the court in such a way that the evidence will assist the court in determining the issue before it that governs whether the witness should be permitted to give opinion evidence in his or her field ... As long as a trial judge is satisfied that the witness is sufficiently experienced in the subject matter of his or her expertise, the judge should not be overly concerned with the details of how the skill was acquired, whether by study or practical experience." - See paragraph 19.

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - A police officer lost control of his 4 wheel drive vehicle on a shopping mall driveway - He skidded down onto the road across the plaintiff's vehicle's path - The plaintiff failed to notice the police vehicle in time to avoid a collision - The drive­way was icy, the road was snow packed, with light snow cover and visibil­ity was good - The trial judge held that the police officer was negligent for failing to adjust his speed for the icy conditions and the plaintiff was negligent for failing to keep a proper lookout at the mall entrance with which she was familiar - The New Bruns­wick Court of Appeal affirmed a 2/3 - 1/3 apportionment of liability in the plaintiff's favour - See para­graphs 4 to 15.

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution - [See Torts - Topic 376 ].

Torts - Topic 462

Negligence - Motor vehicle - Speed - Where reduced speed required - Road conditions - [See Torts - Topic 376 ].

Torts - Topic 6655

Defences - Ultimate negligence - Appli­cation of doctrine - The New Brunswick Court of Appeal stated that "... the doctrine of last clear chance or ultimate negligence or last opportunity has no application in New Brunswick" - See paragraphs 10 to 14.

Cases Noticed:

Davies v. Mann (1842), 10 M. & W. 547; 152 E.R. 588, refd to. [para. 9].

Long v. McLaughlin, [1927] S.C.R. 303, varying [1926] 3 D.L.R. 918; 53 N.B.R. 203 (C.A.), not folld. [paras. 10, 14].

Fairweather v. Renton (1963), 50 M.P.R. 7 (N.B.C.A.), not folld. [paras. 10, 14].

Corno v. Guerette (1969), 1 N.B.R.(2d) 478 (Q.B.), refd to. [paras. 10, 12].

Walls v. Mussens Ltd. and Morrison (1969), 1 N.B.R.(2d) 330 (Q.B.), refd to. [paras. 10, 12].

Patterson v. MacKenzie (1972), 5 N.B.R.(2d) 176 (C.A.), refd to. [paras. 10, 12].

Valois v. Long (1985), 65 N.B.R.(2d) 434; 167 A.P.R. 434 (C.A.), refd to. [paras. 10, 14].

Valais v. Long - see Valois v. Long.

Stamper v. Finnigan, Via Rail Canada Inc., Canadian National Railway Co. and New Brunswick (1988), 85 N.B.R.(2d) 404; 217 A.P.R. 404 (C.A.), refd to. [paras. 11, 14].

Fullerton v. Hosford (1972), 6 N.B.R.(2d) 403 (Q.B.), refd to. [para. 12].

Duguay v. Mallet (1971), 4 N.B.R.(2d) 281 (Q.B.), refd to. [para. 12].

Workmen's Compensation Board (N.B.) v. Kerton (1970), 2 N.B.R.(2d) 527 (Q.B.), refd to. [para. 12].

Larlee et al. v. Cyr et al. (1969), 2 N.B.R.(2d) 50 (Q.B.), refd to. [para. 12].

Knox et al. v. Troussaint (1969), 1 N.B.R.(2d) 817 (C.A.), refd to. [para. 12].

Hartman v. Fisette, [1977] 1 S.C.R. 248; 8 N.R. 301, refd to. [para. 13].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 13].

Authors and Works Noticed:

Caswell, Donald G., Avoiding Last Clear Chance (1990), 69 Can. Bar Rev. 129, generally [para. 11].

Counsel:

Ian Walsh, for the appellant;

John D. Hazen, for the respondent.

This appeal was heard on November 21, 1995, by Hoyt, C.J.N.B., Turnbull and Bastarache, JJ.A., of the New Brunswick Court of Appeal.

The following decision of the Court of Appeal was delivered on December 4, 1995, by Hoyt, C.J.N.B.