French et al. v. Hodge, 2005 NSSC 44

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 25, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 44;(2005), 231 N.S.R.(2d) 95 (SC)

French v. Hodge (2005), 231 N.S.R.(2d) 95 (SC);

 733 A.P.R. 95

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. FE.048

Robin Kevin French and Judith Ann Zinck (plaintiffs) v. Gregory Allen Hodge (defendant)

(S.H. No. 171237; 2005 NSSC 44)

Indexed As: French et al. v. Hodge

Nova Scotia Supreme Court

Pickup, J.

February 25, 2005.

Summary:

The defendant's vehicle turned left into the path of the plaintiffs' oncoming vehicle. The plaintiffs brought a negligence action for damages for personal injuries. The defendant pleaded contributory negligence.

The Nova Scotia Supreme Court found the defendant negligent and solely at fault. The court assessed damages accordingly.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - An adult female plaintiff suffered soft tissue injuries in a motor vehicle accident - The plaintiff continued to suffer chronic myofascial pain - The plaintiff suffered from pre-existing degenerative disc disease - The Nova Scotia Supreme Court awarded $37,000 general damages for nonpecuniary loss - The court accepted that the chronic pain was unrelated to the disc disease - See paragraphs 104 to 122.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - The 40 year old male plaintiff suffered a fractured right ankle and soft tissue injuries to his neck and back - The ankle required two surgeries (plate and screws) - Post-traumatic arthritis resulted and future fusion surgery might be required - Fusion would lessen the pain, but also reduce mobility - The accused had not worked from 1993 to the December 1999 accident because of a significant history of medical and psychological problems, including panic attacks, anxiety, gout, phlebitis, cellulitis and back pain, all of which rendered him unemployable and restricted his physical activities - The plaintiff sought $125,000 general damages - The defendants suggested $45,000 - The Nova Scotia Supreme Court awarded $82,000 general damages for nonpecuniary loss - See paragraphs 16 to 37.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The female plaintiff suffered soft tissue injuries in a December 1999 motor vehicle accident which resulted in chronic pain - The plaintiff was a stay-at-home mother who intended to return to work in 2001 when her youngest child reached school age - The plaintiff sought $70,000-$80,000 general damages for diminished earning capacity - The Nova Scotia Supreme Court awarded $41,000 general damages - The plaintiff was away from the workforce for four years predating the accident - She would have difficulty in returning to the workforce because of the lapse of time and her limited education (no grade 12) - See paragraphs 123 to 134.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - The 40 year old male plaintiff had a history of medical and psychological problems that rendered him unemployable from 1993 to the date of a motor vehicle accident in December 1999 - The accident resulted in an ankle injury rendering him unemployable - The plaintiff sought damages for lost future income on the basis that but for the ankle injury he would have returned to work by 2001 - The Nova Scotia Supreme Court rejected the claim where the court was not satisfied that the plaintiff, but for the accident, would have returned to work - See paragraphs 38 to 54.

Cases Noticed:

Rhyno et al. v. MacFarlane (2004), 225 N.S.R.(2d) 327; 713 A.P.R. 327; 2004 NSSC 123, dist. [para. 32].

Mader v. Lahey, [1997] N.S.J. No. 569, dist. [para. 32].

Campbell-MacIsaac et al. v. Deveaux et al. (2003), 214 N.S.R.(2d) 129; 671 A.P.R. 129 (S.C.), refd to. [para. 32].

Currie v. Stirling Fruit Farms Ltd. et al. (2000), 185 N.S.R.(2d) 359; 575 A.P.R. 359 (S.C.), refd to. [para. 33].

Breau v. Amherst (Town) (1996), 155 N.S.R.(2d) 161; 457 A.P.R. 161 (S.C.), refd to. [para. 33].

MacIntyre v. Beaton (1994), 135 N.S.R.(2d) 11; 386 A.P.R. 11 (S.C.), refd to. [para. 33].

Scott v. Moore (1989), 89 N.S.R.(2d) 47; 227 A.P.R. 47 (S.C.), refd to. [para. 33].

Mills v. Bourgeois Estate (1995), 138 N.S.R.(2d) 296; 394 A.P.R. 296 (S.C.), refd to. [para. 33].

Baker v. O'Hanley (2001), 191 N.S.R.(2d) 179; 596 A.P.R. 179 (S.C.), refd to. [para. 33].

Leahy v. Day (1999), 176 N.S.R.(2d) 191; 538 A.P.R. 191; 1999 CarswellNS 189 (S.C.), refd to. [para. 33].

Taylor v. Nice (1999), 212 N.B.R.(2d) 1; 541 A.P.R. 1; 1999 CarswellNB 169 (T.D.), refd to. [para. 33].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 33].

Porter v. Langille (2001), 195 N.S.R.(2d) 11; 609 A.P.R. 11 (S.C.), refd to. [para. 33].

Authors and Works Noticed:

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort (2004), vol. 4, c. 27, para. 71 [para. 42].

Counsel:

Peter Rumscheidt and Martha Mann, for the plaintiff;

Jamie Chipman and Mark Gorbet (articled clerk), for the defendant.

This action was heard on January 17-26, 2005, at Halifax, N.S., before Pickup, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 25, 2005.