Hayward v. Young, (2013) 330 N.S.R.(2d) 267 (CA)

• Jurisdiction: Nova Scotia
• Judge: Saunders, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Citation: (2013), 330 N.S.R.(2d) 267 (CA),2013 NSCA 65
• Date: 21 January 2013

Hayward v. Young (2013), 330 N.S.R.(2d) 267 (CA);

    1046 A.P.R. 267

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.049

Matilda Young (appellant) v. Craig Hayward (respondent)

(CA 386760; 2013 NSCA 65)

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 (damages decision). The plaintiff appealed. The defendant cross-appealed.

The Nova Scotia Supreme Court, in a decision reported at 313 N.S.R.(2d) 115; 990 A.P.R. 115, declined to award costs to either party (costs decision). The defendant appealed.

The Nova Scotia Court of Appeal, in a decision reported at 330 N.S.R.(2d) 250; 1046 A.P.R. 250, dismissed the appeal and allowed the cross-appeal with respect to the damages decision.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dissenting, allowed the appeal in part with respect to the costs decision.

Interest - Topic 5004

Interest as damages (prejudgment interest) - General principles - Discretion of judge - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - The trial judge declined to award costs to either party - The defendant appealed, asserting that the trial judge erred by fixing pre-judgment interest on general damages at 2.5 percent per annum from the date of loss - The Nova Scotia Court of Appeal rejected the assertion - The trial judge's selection of 2.5 percent per annum from the date of the loss was based on an agreement reached by the parties prior to trial - Thus, quite apart from the trial judge's exercise of her discretion, this was clearly based on counsels' own arrangement and there was no reason to intervene - See paragraph 50.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - The trial judge declined to award costs to either party - The defendant appealed, asserting that the trial judge erred by awarding half of pre-judgment interest on out-of-pocket expenses and disbursements at a rate of 4 percent per annum from the date of loss - The Nova Scotia Court of Appeal rejected the assertion - While there was some merit to the defendant's argument that because these expenses were not all incurred by the plaintiff at one time from the date of the loss, but were spread out over the years and so ought to have been charged from the date each was paid, it was a much quicker method to simply apply half of 4% for pre-judgment interest taken from the date of loss, across the board - There were several suitable choices a trial judge might make in the calculation - See paragraph 51.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The trial judge was not persuaded that the accident in 2003 caused or contributed to the plaintiff's complaint of a brain injury - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - The trial judge declined to award costs to either party - The defendant appealed, asserting that the trial judge erred by failing to award costs to the defendant in spite of her success in defeating the plaintiff's claim for compensation for the traumatic brain injury - The Nova Scotia Court of Appeal rejected the assertion - The trial judge was in the best position to assess relative success and award or refuse costs as a consequence - In her eyes both the plaintiff and the defendant were successful, to some degree - Her conclusion was fully supported in the record - It drove her analysis of costs, once again a matter clearly within her jurisdiction - In view of the trial judge's decision that each of the parties had been successful to a degree, and that his or her costs should be set off against the other's, effectively resulting in a "wash", there was no error in the trial judge's refusal to award the defendant her costs in challenging the plaintiff's claim for damages - See paragraphs 23 to 26.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - The trial judge declined to award costs to either party - The defendant appealed, asserting that the trial judge erred by awarding the plaintiff his out-of-pocket expenses of close to $30,000 - The Nova Scotia Court of Appeal rejected the assertion - The court was ill-equipped at this stage of the proceedings to challenge the justness and reasonableness of these expenditures - Such was a matter best left to the judge who presided over the lengthy trial - The transcript showed that each counsel challenged the reasonableness of each other's disbursements in their oral submissions at the costs hearing - Judges were presumed to know the law - While the trial judge made certain errors in arithmetic, which the court corrected, she did not err in deciding to award the plaintiff his out-of-pocket expenses of close to $30,000 - See paragraphs 27 to 44.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - The trial judge declined to award costs to either party - The defendant appealed, asserting that the trial judge erred by refusing to award the defendant her disbursements - The Nova Scotia Court of Appeal allowed the appeal on this issue - The court, per Saunders, J.A., stated that "[h]aving found that they were each partially successful and that their costs should be effectively sawed off by not awarding costs to either of them, I cannot think of any reason why the judge would allow [the plaintiff] to recover a significant outlay of his expenses, yet deny [the defendant] any of hers. This is especially so when one recalls that [the defendant] successfully challenged the main appeal and won her cross-appeal. There is nothing in the written or oral submissions of counsel or in the transcript of their exchanges with the judge from which I could divine any basis for the judge's omission. Thus, I am driven to the conclusion that she failed to address it." - The court took a fresh and arbitrary view of the record and awarded the defendant disbursements of $28,382.88 - See paragraphs 45 to 49.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff sued for damages suffered as a result of a motor vehicle accident - He asserted that he had suffered a traumatic brain injury and sought $1,412,000 - The defendant made a formal offer to settle in the amount of $200,000 on September 22, 2010 - The plaintiff had made a formal offer to settle in the amount of $750,000 on October 12, 2010 - The plaintiff was awarded damages for his 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 ($28,382.88) and special damages ($13,304.15) and pre-judgment interest of 2.5 percent - The parties could not agree on costs - With respect to the effect of the settlement offers on the costs award, the trial judge held that establishing the "finish date" was significant to any award of costs to be made to the defendant - In the absence of an assigned finish date in accordance with Civil Procedure Rules 4.16(6)(a)(b) and (c) and 94.02, the court deemed the appropriate finish date to have been 60 days before the first day of trial - Therefore, the deemed finish date was September 14, 2010 - The offer was made on September 22, 2010 and therefore rule 10.09(3)(d) did not apply - Rule 10.09(2)(d) allowed a judge to award costs to a party who successfully defended a proceeding if a formal offer was not accepted, in an amount based on the tariffs increased by 25 percent if the offer was made after the finish date - However rule 10.09(3)(d) provided for no award of costs to the only "partially successful defendant" if the offer was made after the finish date - Therefore, the court awarded no costs to the defendant as the defendant was only partially successful as was the plaintiff, creating a split result - The plaintiff asserted that even if the court found the defendant was entitled to his costs based on a formal offer to settle, the plaintiff was entitled to receive his costs up to the date the defendant provided the formal offer to settle - This exercise would amount to a saw-off with respect to both sides' costs - In the circumstances, it was appropriate to not award costs to either party - The defendant appealed, asserting that the trial judge erred by (1) failing to take proper or any account of the defendant's formal offer to settle and (2) by designating September 14, 2010, as the "finish date" - The Nova Scotia Court of Appeal rejected the assertions - While the defendant might complain that the trial judge could have chosen a "finish date" which would have proved more favourable to her position, that was not a basis for the court to interfere in what was clearly an exercise of the trial judge's discretion - Once that date was chosen the only other issue for the judge to decide was how to characterize the level or degree of success achieved by the parties following trial - She decided that success had been divided - Again, the person best placed to decide or apportion "success" was the trial judge who heard the case - See paragraphs 11 to 22.

Cases Noticed:

Claussen Walters & Associates Ltd. v. Murphy (2002), 201 N.S.R.(2d) 58; 629 A.P.R. 58; 2002 NSCA 20, refd to. [para. 39].

Armco Capital Inc. v. Armoyan (2011), 300 N.S.R.(2d) 255; 950 A.P.R. 255; 2011 NSCA 22, refd to. [para. 47].

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. 54].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410; 1992 NSSC 70, refd to. [para. 54].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 55].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 66].

Counsel:

James L. Chipman, Q.C., and Kate Marshall, for the appellant;

Richard A. Bureau, Adam D. Crane and Sean Smith (Articled Clerk), for the respondent.

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

Saunders, J.A. (Hamilton, J.A., concurring) - see paragraphs 1 to 62;

Beveridge, J.A., dissenting - see paragraphs 63 to 91.