King v. Syryk et al., (2011) 269 Man.R.(2d) 190 (QB)

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 20, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 269 Man.R.(2d) 190 (QB);2011 MBQB 211

King v. Syryk (2011), 269 Man.R.(2d) 190 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. OC.006

Dennis King (plaintiff) v. Andrew Syryk and North American Lumber Limited (defendants)

(CI 94-01-81675; 2011 MBQB 211)

Indexed As: King v. Syryk et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Spivak, J.

September 20, 2011.

Summary:

The plaintiff brought an action claiming damages for injuries (left low back and neck) arising from an automobile accident in September 1992. The defendants admitted liability.

The Manitoba Court of Queen's Bench awarded the plaintiff damages totalling $60,000 with interest at 3% for loss of opportunity to invest.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - The plaintiff brought an action claiming damages for injuries (left low back and neck) arising from an automobile accident in September 1992 - The defendants admitted liability - At issue was the nature and extent of the plaintiff's alleged injury and disability and the assessment of damages for pain and suffering and loss of income - The plaintiff had earned $69,093 total since his employment ended in June 1993 - The Manitoba Court of Queen's Bench awarded the plaintiff damages totalling $60,000 with interest at 3% for loss of opportunity to invest - The plaintiff had ongoing neck and back pain since the September accident - The court assessed general damages for pain, suffering, loss of enjoyment of life and loss of amenities at $40,000 - The evidence did not support an award for past and future loss of income on the basis that the plaintiff was entitled to a specific amount - While the evidence suggested that the plaintiff had some impairment, he had failed to call evidence as to the economic impact of his physical restriction - His life had continued in a manner that was inconsistent with significant disability - Moreover, he had failed to mitigate his damages - He had not applied for a job since 1997 nor taken any steps to retrain or find work that accommodated his limitations - However, as the plaintiff had proven some disability or impairment due to the September accident, he was entitled to a general damages award for loss of earning capacity of $20,000 - See paragraphs 46 to 76.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - [See Damage Awards - Topic 498 ].

Damages - Topic 1537

General damages - Elements of general damages - Loss of opportunity to invest - [See Damage Awards - Topic 498 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - [See Damage Awards - Topic 498 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - [See Damage Awards - Topic 498 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See Damage Awards - Topic 498 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 498 ].

Damages - Topic 1625

General damages - Considerations in assessing general damages - Credibility of injured party - The plaintiff brought an action claiming damages for injuries (left low back and neck) arising from an automobile accident in September 1992 - The defendants admitted liability - At issue was the nature and extent of the plaintiff's alleged injury and disability and the assessment of damages for pain and suffering and loss of income - The defendants asserted that the plaintiff was not credible, that he was evasive, cunning and selective in what he was prepared to recall and relay - The Manitoba Court of Queen's Bench rejected this characterization of the plaintiff's evidence - In cases of this kind, there was often an absence of objective findings - Doctors essentially based their opinions on the symptoms reported to them by the patient - An assessment of the plaintiff's credibility and reliability was, therefore, key - There were aspects of the plaintiff's evidence that were inconsistent with some of the statements that he made to physicians - However, generally speaking, he was fairly straightforward and genuine - See paragraphs 17 to 25.

Interest - Topic 5011

Interest as damages (prejudgment interest) - General principles - Interest on nonpecuniary general damages - [See Damage Awards - Topic 498 ].

Interest - Topic 5138.1

Interest as damages (prejudgment interest) - Torts - Negligence - Personal injuries - Loss of earning capacity - [See Damage Awards - Topic 498 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The plaintiff brought an action claiming damages for injuries arising from an automobile accident in September 1992 - The defendants admitted liability - At issue was causation - In October 1992, the plaintiff was in another automobile accident in which he was at fault - The defendants asserted that the "but for" test had not been met - The Manitoba Court of Queen's Bench held that the plaintiff had proven that his ongoing medical condition was caused by the September accident - The plaintiff's evidence that he was injured in the September accident, but not in the October accident, was essentially unchallenged - The court declined to draw an inference adverse to the plaintiff due to his failure to call as a witness the only medical practitioner who saw him both before and after the October accident - The plaintiff had wanted to file that doctor's medical reports by consent, but the defendants would not agree in the absence of the doctor being called for cross-examination - That was the defendants' right, but it did not follow nor was it appropriate to infer that the doctor would not have supported the plaintiff's position - The evidence established that the plaintiff was injured in the September accident, suffering back and neck pain, and that these symptoms continued without change after the October accident - This evidence was sufficient to meet the burden of proof - See paragraphs 26 to 45.

Torts - Topic 65

Negligence - Causation - Evidence - [See Torts - Topic 54 ].

Cases Noticed:

Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), refd to. [para. 18].

Permaform Plastics Ltd. et al. v. London & Midland General Insurance Co. et al. (1996), 110 Man.R.(2d) 260; 118 W.A.C. 260 (C.A.), refd to. [para. 19].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 26].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 27].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 28].

McNaughton v. Ward (2007), 256 N.S.R.(2d) 355; 818 A.P.R. 355; 2007 NSCA 81, refd to. [para. 37].

Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15, refd to. [para. 39].

Simcoff v. Simcoff (2009), 245 Man.R.(2d) 7; 466 W.A.C. 7; 2009 MBCA 80, refd to. [para. 40].

Jopling v. Brodowich, [2009] B.C.T.C. Uned. 653; 2009 BCSC 653, refd to. [para. 54].

Kasic v. Leyh et al., [2009] B.C.T.C. Uned. 649; 2009 BCSC 649, refd to. [para. 54].

Bradshaw v. Matwick, [2009] B.C.T.C. Uned. 564; 2009 BCSC 564, refd to. [para. 54].

Gold v. Joe et al., [2008] B.C.T.C. Uned. 492; 2008 BCSC 865, refd to. [para. 54].

Purpur v. Parkinson (2003), 178 Man.R.(2d) 1; 2003 MBQB 152, refd to. [para. 54].

Zimmerman v. Leckie (2002), 165 Man.R.(2d) 47; 2002 MBQB 157, refd to. [para. 54].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 55].

Fehr v. Brodowski et al. (2000), 145 Man.R.(2d) 267; 218 W.A.C. 267; 2000 MBCA 23, refd to. [para. 58].

Pready v. Milic (1990), 66 Man.R.(2d) 1 (Q.B.), refd to. [para. 58].

Fischer v. Bouteiller (1988), 54 Man.R.(2d) 291 (Q.B.), refd to. [para. 58].

Kowalson v. Halchuk (1987), 49 Man.R.(2d) 197 (Q.B.), refd to. [para. 58].

Simpson v. Felicioni (1985), 33 Man.R.(2d) 184 (Q.B.), refd to. [para. 58].

Hrynchuk v. Fetterly et al. (1995), 101 Man.R.(2d) 51 (Q.B.), refd to. [para. 58].

LeClerc v. Westfair Foods Ltd. (1999), 140 Man.R.(2d) 88 (Q.B.), affd. (2000), 148 Man.R.(2d) 56; 224 W.A.C. 56; 2000 MBCA 73, refd to. [para. 58].

O'Donnell v. Manitoba Public Insurance Corp. et al. (1987), 49 Man.R.(2d) 315 (C.A.), refd to. [para. 70].

Anastasiadis v. Johnston et al. (1990), 63 Man.R.(2d) 192 (Q.B.), refd to. [para. 70].

Pallos v. Insurance Corp. of British Columbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310 (C.A.), refd to. [para. 70].

Reeves v. Arsenault; Reeves v. Gauthier (1998), 168 Nfld. & P.E.I.R. 251; 517 A.P.R. 251 (P.E.I.C.A.), refd to. [para. 70].

Newman et al. v. LaMarche and Black (1994), 134 N.S.R.(2d) 127; 383 A.P.R. 127 (C.A.), refd to. [para. 70].

Van der Aa v. Campbell, [1979] M.J. No. 212 (Q.B.), refd to. [para. 72].

Marynowsky v. Stuartburn (Local Government District) (1994), 97 Man.R.(2d) 60; 79 W.A.C. 60 (C.A.), refd to. [para. 73].

Counsel:

Ellery Strell, for the plaintiff;

Robert D. McDonald and Curran P. McNicol, for the defendants.

This action was heard by Spivak, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 20, 2011.