Lawrence v. Bateman, (1996) 162 N.S.R.(2d) 257 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 13, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 162 N.S.R.(2d) 257 (SC)

Lawrence v. Bateman (1996), 162 N.S.R.(2d) 257 (SC);

    485 A.P.R. 257

MLB headnote and full text

Irene Lawrence, of the Town of Glace Bay, County of Cape Breton, Province of Nova Scotia (plaintiff) v. Arthur Bateman and Russell Bateman, Jr., both of the Town of North Sydney, County of Cape Breton, Province of Nova Scotia (defendants)

(SN No. 07351)

Indexed As: Lawrence v. Bateman

Nova Scotia Supreme Court

MacAdam, J.

September 13, 1996.

Summary:

The plaintiff was injured in a 1990 motor vehicle accident in which she struck the defendants' vehicle, which had failed to stop at a stop sign. The plaintiff brought a negli­gence action for damages against the de­fendants. The defendants claimed that the plaintiff was contributorily negligent by failing to see the defendants' vehicle until a collision was unavoidable.

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

Damage Awards - Topic 11

Injury and death - Continuing pain (incl. myofascial and chronic pain syndrome) - The 49 year old plaintiff suffered a soft tissue injury in 1990 - The plaintiff, now 55, was totally disabled from employment due to chronic pain and co-existing de­pression - The plaintiff was "no longer able to enjoy many of life's experiences, including socializing with family and colleagues at work, participating in previ­ously enjoyed recreational activities, and carrying out a full range of housekeeping and related activities" - The Nova Scotia Supreme Court awarded $65,000 general damages for nonpecuniary loss - See para­graphs 108 to 121.

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - The 49 year old plaintiff suffered a soft tissue injury in 1990 - The plaintiff, now 55, was totally disabled from employment due to chronic pain and co-existing depression - The plaintiff had a Grade 8 education and had been employed in a hospital housekeeping unit for 23 years - The plain­tiff's life expectancy was almost 28 years and she intended to retire at age 65 (10 years from the date of trial) - Nega­tive contingencies included, inter alia, the plaintiff's post-accident development of diabetes and severe right sciatica, possibil­ity of early retirement at age 60 and dis­ability resulting had the accident not occurred - The Nova Scotia Supreme Court, applying a "substantial adverse contingency", awarded the plaintiff $100,000 general damages as the present value of lost future income - See para­graphs 127 to 132.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The 49 year old plaintiff suffered a soft tissue injury in 1990, which totally disabled her from employment due to chronic pain and co-existing depression - Her pain and depression reduced her capacity to perform housework by 75% - Although relatives assisted prior to trial, there were no re­ceipts or expenditures to quantify the loss - The Nova Scotia Supreme Court award­ed $20,000 for past loss of house­keeping capacity and $20,000 as the pres­ent value of lost future housekeeping capacity - See paragraphs 133 to 149.

Damages - Topic 1440

Special damages - Medical and hospital - A plaintiff injured in a 1990 accident claimed damages for past and future medi­cation costs - The defendant claimed that no allowance should be made for these costs, where the plaintiff's Section B bene­fits under her automobile insurance policy covered both past and future medication costs - There was no evidence that the plaintiff submitted a claim to her insurer for reimbursement of medical expenses, accordingly, there was no request that was refused by the insurer - The Nova Scotia Supreme Court dismissed the plaintiff's claim for past and future medication costs - See paragraphs 175 to 192.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counselling) - The 49 year old plaintiff suffered a soft tissue injury in 1990 - The plaintiff, now 55, was totally disabled from employment due to chronic pain and co-existing depression - The Nova Scotia Supreme Court awarded the plaintiff a management of fund fee based on the total sum awarded using a .5% annual rate - The plaintiff was entitled to such an award where her disability made her unable to manage her affairs or she lacked the acumen to do so to produce the required rate of return - See paragraphs 164 to 168.

Damages - Topic 1565

General damages - General damages for personal injury - Deductions or payments (incl. future income tax and pensions) - The 49 year old plaintiff suffered a soft tissue injury in 1990 - The plaintiff, now 55, was totally disabled from employment due to chronic pain and co-existing de­pression - The plaintiff claimed damages for lost future pension benefits - The plain­tiff was receiving disability benefits until age 65, when she had intended to retire - The Nova Scotia Supreme Court set out formula for calculating the loss, if any, of future pension benefits - The court stated that "if ... the calculations of the present day value of loss of future pension benefits is less than the total of the calcu­lations for contribution savings, past and future, and disability payments, past and future, this 'so-called' gain is not to be deducted from the plaintiff's other losses" - See para­graphs 150 to 163.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See Damages - Topic 1440 ].

Interest - Topic 5137

As damages (prejudgment interest) - Torts - Negligence - Personal injuries - The plaintiff was injured in a 1990 motor vehicle accident by the defendants' negli­gence - The action was filed in 1992 - The notice of trial and certificate of readi­ness was not filed until 1995 - The de­fendants did not file a defence until 1996 - The plaintiff sought prejudgment interest from 1990 to the date of judgment - The de­fendants cited the excessive delay in bring­ing the matter to trial as justifying a limit on prejudgment interest - The Nova Scotia Supreme Court stated that but for the defendants' unjustified delay in filing a defence, the court would have limited prejudgment interest to four years - How­ever, given that late filing, the court awarded the plaintiff prejudgment interest for the full period from 1990 to the date of judgment - See paragraphs 169 to 174.

Interest - Topic 5146

As damages (prejudgment interest) - Torts - Delay - Effect of - [See Interest - Topic 5137 ].

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - The 49 year old female plaintiff suffered chronic pain and co-existing depression following a 1990 soft tissue injury - The defendants submitted that post-accident events (father and mother died, husband disabled in an accident, plaintiff developed diabetes, severe right sciatica and inappropriate medical treatment) were intervening causes contributing to the plaintiff's present con­dition and inability to resume employment - The Nova Scotia Supreme Court stated that the chronic pain and depression pre­dated the intervening events - The fact that the intervening events may have ag­gra­vated the effects of the initial injury did not absolve the defendants of full liability for all the results of the injury, subject to being taken into account in determining contingencies on assessing damages - The intervening events were not "unique" or "outside the range of normal experience" - See paragraphs 72 to 107.

Torts - Topic 438

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Yield or stop sign - The plaintiff motor vehicle driver struck the defendants' motor vehicle after the defendants entered a through street without stopping at a stop sign - The defendants claimed that the plaintiff was contributorily negligent for failing to ob­serve the defendants' vehicle until a colli­sion was unavoidable - The Nova Scotia Supreme Court found the defendants negli­gent and solely at fault - The cause of the accident was the defendants' failure to stop at a stop sign - The plaintiff was entitled to assume that the defendants would stop and not enter until it was safe to do so - See paragraphs 1 to 9.

Cases Noticed:

Bardos v. Mooring (1974), 9 N.S.R.(2d) 180 (T.D.), affd. (1974), 9 N.S.R.(2d) 178 (C.A.), refd to. [para. 8].

Binder v. Mardo Construction Ltd. et al. (1994), 136 N.S.R.(2d) 20; 388 A.P.R. 20 (C.A.), refd to. [para. 37].

Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.), refd to. [para. 72].

Smith v. Leech Brain & Co., [1962] 2 Q.B. 405, refd to. [para. 74].

Elloway v. Boomars (1968), 69 D.L.R.(2d) 605 (B.C.C.A.), refd to. [para. 74].

Hendsbee v. Chiasson et al. (1994), 132 N.S.R.(2d) 241; 376 A.P.R. 241 (S.C.), refd to. [para. 86].

Block v. Martin, [1951] 4 D.L.R. 121 (Alta. S.C.), refd to. [para. 86].

Haines v. Bellissimo et al. (1977), 18 O.R.(2d) 177 (H.C.), refd to. [para. 97].

Parr v. Mirza (1993), 122 N.S.R.(2d) 228; 338 A.P.R. 228 (S.C.), affd. (1994), 127 N.S.R.(2d) 97; 355 A.P.R. 97 (C.A.), refd to. [para. 98].

Mercer v. Gray, [1941] 3 D.L.R. 564 (Ont. C.A.), refd to. [para. 99].

Papp et al. v. Leclerc (1977), 16 O.R.(2d) 158 (C.A.), refd to. [para. 101].

Grant v. Sun Shipping Co., [1948] A.C. 549 (H.L.), refd to. [para. 104].

Kolesar v. Jeffries (1974), 9 O.R.(2d) 41 (H.C.), refd to. [para. 105].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), dist. [para. 108].

Woods v. Hubley (1995), 140 N.S.R.(2d) 180; 399 A.P.R. 180 (S.C.), revd. in part (1995), 146 N.S.R.(2d) 97; 422 A.P.R. 97 (C.A.), refd to. [para. 112].

Cook et al. v. Walkers Wharf Ltd. and Davis (1992), 117 N.S.R.(2d) 361; 324 A.P.R. 361 (T.D.), refd to. [para. 117].

Blotnicky and Blotnicky v. Oliver (1988), 84 N.S.R.(2d) 14; 213 A.P.R. 14 (T.D.), refd to. [para. 117].

White v. Slawter (1996), 149 N.S.R.(2d) 321; 432 A.P.R. 321 (C.A.), refd to. [para. 117].

Johnston v. Murchison (1993), 112 Nfld. & P.E.I.R. 181; 350 A.P.R. 181 (P.E.I.T.D.), revd. in part (1995), 127 Nfld. & P.E.I.R. 1; 396 A.P.R. 1 (P.E.I.C.A.), refd to. [para. 120].

Thomas-Canning v. Juteau (1993), 122 N.S.R.(2d) 23; 338 A.P.R. 23 (S.C.), refd to. [para. 125].

Fobel v. Dean and MacDonald, [1991] 6 W.W.R. 408; 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), refd to. [para. 136].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 157].

Mandzuk v. Vieira and Insurance Corp. of British Columbia, [1988] 2 S.C.R. 650; 89 N.R. 394, refd to. [para. 164].

Scott v. Pettigrew (1994), 132 N.S.R.(2d) 60; 376 A.P.R. 60 (S.C.), refd to. [para. 166].

McErlean v. Brampton (City) et al. (1987), 22 O.A.C. 186; 42 D.L.R.(4th) 577 (C.A.), refd to. [para. 168].

Baumeister v. Drake (1986), 38 C.C.L.T.(2d) 382 (B.C.S.C.), refd to. [para. 168].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 169].

Broughm-O'Keefe and O'Keefe v. Taylor (1991), 102 N.S.R.(2d) 68; 279 A.P.R. 68 (T.D.), refd to. [para. 172].

Armstrong v. Baker and McCrindle (1992), 113 N.S.R.(2d) 420; 309 A.P.R. 420 (T.D.), refd to. [para. 174].

Corkum v. Sawatsky et al. (1993), 126 N.S.R.(2d) 317; 352 A.P.R. 317 (C.A.), refd to. [para. 181].

MacKay v. Rovers et al. (1987), 79 N.S.R.(2d) 237; 196 A.P.R. 237 (C.A.), refd to. [para. 187].

MacLeod v. Lumberman Mutual Casualty Co. (1993), 121 N.S.R.(2d) 146; 335 A.P.R. 146 (S.C.), refd to. [para. 191].

Bridges v. General Accident Indemnity Co., [1994] N.S.J. No. 297 (T.D.), refd to. [para. 191].

Statutes Noticed:

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 122(2) [para. 6].

Authors and Works Noticed:

Cooper-Stephenson, Ken, Personal Injury Damages in Canada (1996), pp. 823, 824 [para. 90]; 827, 828 [para. 92].

Counsel:

Gerard X. MacKenzie and Alan Stanwick, for the plaintiff;

Guy LaFosse and LeeAnne MacLeod, for the defendants.

This action was heard on June 10-12 and August 20, 21, 23 and 26-30, 1996, at Syd­ney, N.S., before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on September 13, 1996, with written release on April 21, 1997.