Hayward v. Young, (2013) 330 N.S.R.(2d) 250 (CA)

• Judge: Saunders, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 21, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 330 N.S.R.(2d) 250 (CA);2013 NSCA 64

Hayward v. Young (2013), 330 N.S.R.(2d) 250 (CA);

    1046 A.P.R. 250

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.048

Craig Hayward (appellant/respondent by cross-appeal) v. Matilda Young (respondent/appellant by cross-appeal)

(CA 388940; 2013 NSCA 64)

Indexed As: Hayward v. Young

Nova Scotia Court of Appeal

Saunders, Hamilton and Beveridge, JJ.A.

May 22, 2013.

Summary:

The plaintiff was injured in a motor vehicle accident on April 5, 2003. The defendant admitted liability for the accident. The plaintiff sued, claiming damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back. He also said he had received a traumatic brain injury.

The Nova Scotia Supreme Court, in a decision reported at [2011] N.S.R.(2d) Uned. 165, awarded damages for pain and suffering and loss of amenities in the amount of $120,000 and loss of future care in the amount of $10,000, out-of-pocket expenses and special damages ($13,304.15) and pre-judgment interest of 2.5 percent. The plaintiff appealed. The defendant cross-appealed.

The Nova Scotia Court of Appeal dismissed the appeal and allowed the cross-appeal.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - The plaintiff was injured in a motor vehicle accident on April 5, 2003 - The defendant admitted liability for the accident - The plaintiff sued, claiming damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back - He also said he had received a traumatic brain injury - The trial judge awarded damages for pain and suffering and loss of amenities in the amount of $120,000 and loss of future care in the amount of $10,000, out-of-pocket expenses and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The plaintiff appealed - The defendant cross-appealed, asserting that the trial judge erred when, having explicitly found that the plaintiff did not suffer from anything other than "serious soft tissue injuries" which "should be assessed at the high end of Smith v. Stubbert [1992 N.S.C.A.]" she nonetheless proceeded to award $120,000 for pain, suffering and loss of amenities - The Nova Scotia Court of Appeal allowed the cross-appeal - Smith v. Stubbert established a range of damages of $18,000 to $40,000 for "persistently troubling but not totally disabling injury" - When damages were seen to fall within the Smith v. Stubbert range, they were adjusted to account for inflation and then expressed as current dollars prevailing at the time of trial - For the purposes of this appeal $40,000 in 1992 would translate into the sum of $57,149.64 in 2011 - By granting the plaintiff $120,000 in general damages, the trial judge more than doubled the upper limit set in Smith v. Stubbert - "She offered no explanation for awarding such compensation, nor did she provide any reasons for departing from the long recognized range established more than 20 years ago and consistently applied ever since." - The trial judge's award of general damages to the plaintiff for pain, suffering and loss of amenities was reduced to $57,500 - See paragraphs 45 to 61.

Damage Awards - Topic 488

Injury and death - General damage awards - Costs of housekeeping services and child care - The plaintiff was injured in a motor vehicle accident on April 5, 2003 - The defendant admitted liability for the accident - The plaintiff sued, claiming damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back - He also said he had received a traumatic brain injury - The trial judge awarded damages for pain and suffering and loss of amenities in the amount of $120,000 and loss of future care in the amount of $10,000, out-of-pocket expenses and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The plaintiff appealed, asserting that the trial judge erred in declining to award the plaintiff anything for loss of valuable services/housekeeping - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge was in a preferred position - After reviewing the trial judge's comprehensive and balanced assessment of the evidence as well as her strong findings of fact, there was nothing to warrant appellate intervention - See paragraphs 41 to 43.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The plaintiff was injured in a motor vehicle accident on April 5, 2003 - The defendant admitted liability for the accident - The plaintiff sued, claiming damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back - He also said he had received a traumatic brain injury - The trial judge awarded damages for pain and suffering and loss of amenities in the amount of $120,000 and loss of future care in the amount of $10,000, out-of-pocket expenses and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The plaintiff appealed, asserting that the trial judge erred in only awarding the plaintiff $10,000 for the loss of future care - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge was alive to the prospect that the plaintiff might face some expense for future care and that the sum of $10,000 would adequately compensate for that possibility - The trial judge was in the best position to assess the likelihood of such a potential future claim and put a value on it - On the record it was not the court's role to second guess her assessment - See paragraphs 39 and 40.

Torts - Topic 61

Negligence - Causation - Causal connection - The plaintiff was injured in a motor vehicle accident on April 5, 2003 - The defendant admitted liability for the accident - The plaintiff sued, claiming damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back - He also said he had received a traumatic brain injury - The trial judge was not persuaded that the accident in 2003 caused or contributed to the plaintiff's complaint of a brain injury - In her view, the medical evidence was insufficient to establish anything other than serious soft tissue injuries that developed into chronic pain - The plaintiff appealed, asserting that the trial judge erred in failing to find that the plaintiff suffered a traumatic brain injury in the motor vehicle accident - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge's findings were not the product of palpable and overriding error - They acquired strong support in the record - There was no basis for appellate intervention - See paragraphs 26 to 35.

Cases Noticed:

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 20].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 23].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 23].

McPhee v. Gwynne-Timothy (2005), 232 N.S.R.(2d) 175; 737 A.P.R. 175; 2005 NSCA 80, refd to. [para. 23].

Sharpe v. Abbott (2007), 250 N.S.R.(2d) 228; 796 A.P.R. 228; 2007 NSCA 6, refd to. [para. 23].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 26].

Fullowka et al. v. Pinkerton's of Canada et al. (2010), 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 26].

Landry v. McCormick Estate (1997), 158 N.S.R.(2d) 97; 466 A.P.R. 97 (S.C.), refd to. [para. 49].

Terry v. Lombardo (1998), 167 N.S.R.(2d) 365; 502 A.P.R. 365 (S.C.), refd to. [para. 49].

Porter v. Langille (2001), 195 N.S.R.(2d) 11; 609 A.P.R. 11; 2001 NSSC 90, refd to. [para. 49].

Whitehead v. Plouffe, 2001 CarswellNS 531 (S.C.), refd to. [para. 49].

Berthier v. Horton (2003), 217 N.S.R.(2d) 83; 683 A.P.R. 83; 2003 NSSC 198, refd to. [para. 49].

Lush v. Thompson (2003), 219 N.S.R.(2d) 324; 692 A.P.R. 324; 2003 NSSC 249, refd to. [para. 49].

MacAulay v. Smith et al. (2006), 242 N.S.R.(2d) 102; 770 A.P.R. 102; 2006 NSSC 19, refd to. [para. 49].

Morel v. Bryden (2006), 246 N.S.R.(2d) 43; 780 A.P.R. 43; 2006 NSSC 218, refd to. [para. 49].

Merrick v. Guilbeault et al. (2009), 276 N.S.R.(2d) 68; 880 A.P.R. 68; 2009 NSSC 60, refd to. [para. 49].

Gillis v. Stutley Plumbing and Heating Ltd. et al. (2012), 318 N.S.R.(2d) 342; 1005 A.P.R. 342; 2012 NSSC 244, refd to. [para. 49].

Mawdsley v. McCarthy's Towing & Recovery Ltd. et al. (2010), 291 N.S.R.(2d) 229; 922 A.P.R. 229; 2010 NSSC 168, refd to. [para. 51].

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271; 2002 NSCA 47, refd to. [para. 55].

Dillon v. Kelly (1996), 150 N.S.R.(2d) 102; 436 A.P.R. 102; 1996 NSCA 79, refd to. [para. 57].

Counsel:

Richard A. Bureau, Adam D. Crane and Sean Smith (Articled Clerk), for the appellant (respondent by cross-appeal);

James L. Chipman, Q.C., and Kate Marshall, for the respondent (appellant by cross-appeal).

This appeal and cross-appeal were heard on January 21, 2013, by Saunders, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on May 22, 2013.