Furlotte v. Elward, (2011) 379 N.B.R.(2d) 199 (CA)

• Judge: Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 14, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 379 N.B.R.(2d) 199 (CA);2011 NBCA 95

Furlotte v. Elward (2011), 379 N.B.R.(2d) 199 (CA);

    379 R.N.-B.(2e) 199; 978 A.P.R. 199

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2011] N.B.R.(2d) TBEd. OC.042

Renvoi temp.: [2011] N.B.R.(2d) TBEd. OC.042

Weldon Furlotte (appellant) v. Mario Elward (respondent)

(106-10-CA; 2011 NBCA 95)

Indexed As: Furlotte v. Elward

Répertorié: Furlotte v. Elward

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.

October 20, 2011.

Summary:

Résumé:

The plaintiff sued the defendant for damages for personal injuries suffered in a minor motor vehicle accident. Liability was admitted. The defendant argued that the plaintiff had a pre-existing back condition and the accident did little or nothing to cause his present complaints.

The New Brunswick Court of Queen's Bench, Trial Division, reported at 362 N.B.R.(2d) 365; 934 A.P.R. 365, awarded the plaintiff $30,000 for general damages and $74,500 for loss of valuable services. The plaintiff appealed. The defendant cross-appealed respecting the award for loss of valuable services.

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

Damage Awards - Topic 70

Injury and death - Back - Aggravation of pre-existing condition - The plaintiff lawyer suffered a whiplash injury (category I) in a minor motor vehicle accident - He argued that the accident caused him to be totally incapacitated - He could no longer hunt, fish, take long walks or fly his plane anymore - His memory was not good - He utilized physiotherapy, massage therapy, chiropractors as well as pain killers but could not eliminate the pain - He suffered from pre-existing degenerative disc disease - The whiplash injury was "superimposed on a pre-existing symptomatic degenerative disc disease of his lumbar spine" - The trial judge held that the pre-existing condition was exacerbated by the accident - The pre-existing condition had, before the accident, developed into symptomatic spinal degenerative disease - The accident elevated the plaintiff's pain for a two year period but did not cause changes to his spine or his present medical condition - This was a "crumbling skull" situation - The court awarded the plaintiff $30,000 for general damages for pain, suffering and loss of amenities of life - The court concluded that the accident did not cause the plaintiff's retirement as he had intended to retire anyway - The plaintiff appealed, seeking a new trial to increase the award of non-pecuniary general damages - The New Brunswick Court of Appeal dismissed the appeal - There was no basis for intervention in the plaintiff's favour - See paragraphs 10 to 14.

Damage Awards - Topic 491

Injury and death - General damage awards - Loss of valuable services - The plaintiff lawyer suffered a whiplash injury (category I) in a minor motor vehicle accident - He argued that the accident caused him to be totally incapacitated - He could no longer hunt, fish, take long walks or fly his plane anymore - His memory was not good - He utilized physiotherapy, massage therapy, chiropractors as well as pain killers but could not eliminate the pain - He suffered from pre-existing degenerative disc disease - The whiplash injury was "superimposed on a pre-existing symptomatic degenerative disc disease of his lumbar spine" - The trial judge held that the pre-existing condition was exacerbated by the accident - The pre-existing condition had, before the accident, developed into symptomatic spinal degenerative disease - The accident elevated the plaintiff's pain for a two year period but did not cause changes to his spine or his present medical condition - This was a "crumbling skull" situation - The court awarded the plaintiff $74,500 for loss of valuable services - The New Brunswick Court of Appeal allowed the defendant's cross-appealed respecting the award - The trial judge was entitled to find that the accident caused the plaintiff's incapacity to perform certain tasks during the two years following its occurrence - However, he erred in calculating the award based on the use of a more expensive corporate service provider for the services, rather than a less expensive non-corporate professional service provider - There was no evidence of a difference in the quality of the two services - The result was a windfall - The court reduced the award for loss of valuable services to $28,500 - See paragraphs 16 to 25.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - [See Damage Awards - Topic 70 ].

Dommages-intérêts - Cote 591

Limites aux dommages-intérêts compensatoires - Prédisposition aux blessures (règle de la victime vulnérable ou de la victime déjà atteinte) - Victime vulnérable ou victime déjà atteinte - [Voir Damages - Topic 591 ].

Évaluation des dommages-intérêts - Cote 70

Blessures et décès - Blessures au tronc - Dos - Aggravation d'une condition préexistante - [Voir Damage Awards - Topic 70 ].

Évaluation des dommages-intérêts - Cote 491

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de services utiles - [Voir Damage Awards - Topic 491 ].

Cases Noticed:

Wallace v. Thibodeau (2008), 337 N.B.R.(2d) 342; 864 A.P.R. 342; 2008 NBCA 78, refd to. [para. 7].

Sinclair v. Dines (2005), 279 N.B.R.(2d) 227; 732 A.P.R. 227; 2005 NBCA 15, refd to. [para. 8].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 9].

T.M.S. v. New Brunswick (Department of Social Development) - see New Brunswick (Minister of Family and Community Services) v. T.M.S. and J.C.

New Brunswick (Minister of Family and Community Services) v. T.M.S. and J.C. (2009), 347 N.B.R.(2d) 285; 894 A.P.R. 285; 2009 NBCA 50, refd to. [para. 9].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103 (C.A.), refd to. [para. 16].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247; 2000 NBCA 18, refd to. [para. 16].

Milliard v. Mescheau et al. (2006), 306 N.B.R.(2d) 201; 793 A.P.R. 201; 2006 NBQB 385 (T.D.), affd. (2007), 315 N.B.R.(2d) 190; 815 A.P.R. 190; 2007 NBCA 37, refd to. [para. 20].

Smith v. Agnew (2001), 240 N.B.R.(2d) 63; 622 A.P.R. 63; 2001 NBCA 83, refd to. [para. 21].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 21].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 328 [para. 21].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (3rd Ed. 2009), pp. 822, 823 [para. 13].

Counsel:

Avocats:

Weldon Furlotte appeared in person;

Charles A. LeBlond, Q.C., for the respondent.

This appeal and cross-appeal were heard on June 14, 2011, by Drapeau, C.J.N.B., Larlee and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the court was delivered in both official languages on October 20, 2011, by Larlee, J.A.