Leddicote v. Nova Scotia (Attorney General) et al., 2002 NSCA 47

• Judge: Glube, C.J.N.S., Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 05, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSCA 47;(2002), 203 N.S.R.(2d) 271 (CA)

Leddicote v. N.S. (A.G.) (2002), 203 N.S.R.(2d) 271 (CA);

 635 A.P.R. 271

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. MY.008

Elizabeth Kathleen Leddicote (appellant) v. Attorney General of Nova Scotia, representing Her Majesty The Queen in Right of the Province of Nova Scotia, and Jocelyn Patterson (respondents)

(CA 170962; 2002 NSCA 47)

Indexed As: Leddicote v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Cromwell and Saunders, JJ.A.

April 5, 2002.

Summary:

The plaintiff lost control of her motor vehicle when, shortly after a snowstorm, she drove into a patch of slush on the highway. While her vehicle was sideways on the highway, it was struck by the defendant Patterson's vehicle, who was following closely behind. The plaintiff brought a negli­gence action for damages against Patterson and against the province for failing to prop­erly clear the highway of ice and snow.

The Nova Scotia Supreme Court, in a judgment reported 185 N.S.R.(2d) 325; 575 A.P.R. 325, held that the accident was caused primarily by the plaintiff losing control of her vehicle, but that the defendant Patterson was also negligent for travelling too closely behind the plaintiff's vehicle given the slippery condition of the highway. The court apportioned liability 90% to the plaintiff and 10% to Patterson. The court dismissed the negligence claim against the province and assessed damages accordingly. The plaintiff appealed the apportionment of liability, the dismissal of her claim against the province, the failure to award damages for lost housekeeping services, lost income and loss of earning capacity and the calcula­tion of the "amount involved" for the pur­pose of awarding costs to Patterson and the province. Patterson cross-appealed the awarding of compounded pre-judgment in­terest on general damages, submitting that only simple interest should have been awarded.

The Nova Scotia Court of Appeal, Saunders, J.A., dissenting solely on the reapportionment of liability, allowed the appeal in part and dismissed the cross-appeal. The majority of the Court reap­portioned liability 60% to the plaintiff and 40% to Patterson. In all other respects the appeal was dismissed.

Crown - Topic 1573

Torts by and against Crown - Negligence by Crown - Construction and maintenance of highways - [See Torts - Topic 9156 ].

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclu­sions - Policies or "policy" decisions - [See Torts - Topic 9156 ].

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of house­keeping capacity - The plaintiff sustained soft tissue injuries to her neck and shoul­der in a motor vehicle accident - As a result of the injuries, the plaintiff now suffered from chronic pain syndrome diagnosed as fibromyalgia - The injuries also exacerbated pre-existing psychological difficulties - The trial judge rejected a claim for damages for loss of house­keeping capacity on the ground that there was no reasonable expectation that house­keeping or personal services would have to be paid for in the future - The Nova Scotia Court of Appeal held that the trial judge did not err in rejecting the claim on the ground that the plaintiff failed to establish an impaired ability to perform house­keeping services - See paragraphs 36 to 52.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The plaintiff sustained soft tissue injuries to her neck and shoulder in a motor vehicle accident - As a result of the injuries, the plaintiff now suffered from chronic pain syndrome diagnosed as fibro­myalgia - The injuries also exacerbated pre-existing psychological difficulties - The trial judge rejected a claim for damages for loss of earning capacity - The plaintiff claimed that her injuries precluded her from joining the RCMP - The Nova Scotia Court of Appeal held that the trial judge did not err in rejecting the claim - Not­withstanding the plaintiff's injuries, she secured well-paid employment and her failure to be accepted by the RCMP was unrelated to her injuries - The trial judge was justified in finding that the plaintiff's capacity to earn income had not been impaired - See paragraphs 53 to 77.

Interest - Topic 5010

Interest as damages (prejudgment interest) - General principles - Calculation of in­terest - Simple or compound - A defendant submitted that the trial judge erred in awarding compounded pre-judgment in­terest on the plaintiff's general damages; that absent an evidentiary basis to support compounded interest, only simple interest should have been awarded - The Nova Scotia Court of Appeal held that the trial judge did not err in awarding compounded interest - The court stated that "where, as here, inflation has not been taken into account in the assessment of damages, I am not persuaded that an award of pre-judgment interest, compounded annually, was an unreasonable allowance for the [plaintiff's] loss of value of the money and loss of the use of the money which interest is intended to compensate." - See para­graphs 87 to 100.

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - The plain­tiff sued the defendant and the province in negligence for damages for personal injuries - The claim against the province was dismissed and the plaintiff was found 90% at fault (defendant 10% at fault) - The defendant and province were awarded party and party costs based on an "amount involved" equal to the damages claimed by the plaintiff - The plaintiff submitted that the "amount involved" should have been limited to the amount of damages actually awarded - The Nova Scotia Court of Appeal held that the trial judge did not err in exercising his discretion to use the amount of damages claimed as the "amount involved" - To use the actual damages awarded would be to penalize the defendant and province for their successful defences - See paragraphs 78 to 86.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - The plaintiff lost control of her vehicle when, shortly after a snowstorm, she chose to drive through a patch of slush on the highway rather than slowing down or driving around it - While the plaintiff's vehicle was sideways on the highway it was struck by the defendant's vehicle, who was fol­lowing six car lengths behind - The trial judge held that the plaintiff was negligent and 90% at fault for losing control of her vehicle and that the defendant was negli­gent and 10% at fault for travelling too closely behind the plaintiff's vehicle in slippery highway conditions - The Nova Scotia Court of Appeal held that the trial judge erred in failing to apportion greater fault to the defendant - The trial judge failed to give adequate reasons for this extreme apportionment, failed to refer to the relevant legal principles and did not consider relevant evidence - The court reapportioned liability 60% to the plaintiff and 40% to the defendant, which reflected the comparative blameworthiness of the causative negligent acts - See paragraphs 102 to 115.

Torts - Topic 382

Negligence - Motor vehicle - Standard of care of driver - Travelling too close to vehicles ahead - [See Torts - Topic 380 ].

Torts - Topic 399

Negligence - Motor vehicle - Standard of care of driver - Of vehicle following another - [See Torts - Topic 380 ].

Torts - Topic 6603

Defences - Contributory negligence - Gen­eral - Apportionment of fault - General - The Nova Scotia Court of Appeal stated that "the trial judge's apportionment of liability should only be interfered with on appeal if there is 'a demonstrable error in the trial judge's appreciation of the facts or applicable legal principles'" - See para­graph 102.

Torts - Topic 6603

Defences - Contributory negligence - Gen­eral - Apportionment of fault - General - [See Torts - Topic 380 ].

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - The plaintiff lost control of her vehicle when, shortly after a snowstorm, she drove into a patch of slush on the highway - The high­way had been ploughed and salted, but remained partially snow or slush covered - While the plaintiff's vehicle was sideways on the highway, it was struck by Patter­son's following vehicle - The plaintiff brought a negligence claim against the province, alleging a failure to properly clear the highway of ice and snow - The Nova Scotia Court of Appeal held that the trial judge did not err in rejecting the claim - There was no negligence by the province where it had a reasonable policy in effect to ensure that highways were properly cleared during and after storms and the policy was adequately carried out on the day in question - See paragraphs 26 to 35.

Cases Noticed:

Carter v. Anderson (1998), 168 N.S.R.(2d) 297; 505 A.P.R. 297 (C.A.), refd to. [paras. 4, 46].

Parker v. Parsons (1997), 160 N.S.R.(2d) 321; 473 A.P.R. 321 (C.A.), refd to. [para. 10].

Fraser v. Hunter Estate (2000), 184 N.S.R.(2d) 217; 573 A.P.R. 217 (C.A.), refd to. [para. 11].

Ingles v. Tutkaluk Construction Ltd. et al., [2001] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201, refd to. [paras. 12, 102].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 13].

Sterling v. Dykens (1994), 128 N.S.R.(2d) 125; 359 A.P.R. 125 (S.C.), refd to. [para. 24].

Cawson v. Quandt (1999), 13 B.C.T.C. 204 (S.C.), revd. (2001), 154 B.C.A.C. 1; 251 W.A.C. 1 (C.A.), refd to. [para. 24].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; [1994] 2 W.W.R. 609; 87 B.C.L.R.(2d) 1, refd to. [para. 27].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241; 16 C.C.E.L.(2d) 141; 96 D.T.C. 6103; 10 C.C.P.B. 213; 133 D.L.R.(4th) 289; [1996] 1 C.T.C. 303, refd to. [paras. 27, 111].

Québec (Curateur public) v. Syndicat national des employés de l'Hopital St.-Ferdinand et autres, [1996] 3 S.C.R. 211; 202 N.R. 321, refd to. [para. 27].

Pye v. MacLean (1996), 150 N.S.R.(2d) 159; 436 A.P.R. 159 (C.A.), refd to. [para. 27].

White v. Slawter (1996), 149 N.S.R.(2d) 321; 432 A.P.R. 321 (C.A.), refd to. [para. 27].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 31].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103; 168 D.L.R.(4th) 513; 59 B.C.L.R.(3d) 81, refd to. [para. 31].

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; 140 D.L.R.(4th) 235; 31 C.C.L.T.(2d) 113; [1997] 1 W.W.R. 97, refd to. [para. 41].

Fobel v. Dean (1991), 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), leave to appeal refused, [1992] 1 S.C.R. vii; 138 N.R. 404; 97 Sask.R. 240; 12 W.A.C. 240 (S.C.C.), refd to. [para. 49].

Miller v. Folkertsma Farms Ltd. et al. (2001), 197 N.S.R.(2d) 282; 616 A.P.R. 282 (C.A.), refd to. [para. 51].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 55].

Naylor Group Inc. v. Ellis-Don Construc­tion Ltd. (2001), 277 N.R. 1; 153 O.A.C. 341; 204 D.L.R.(4th) 513 (S.C.C.), refd to. [para. 56].

Gaudet v. Doucet et al. (1991), 101 N.S.R.(2d) 309; 275 A.P.R. 309 (T.D.), refd to. [para. 57].

Newman et al. v. LaMarche and Black (1994), 134 N.S.R.(2d) 127; 383 A.P.R. 127 (C.A.), refd to. [para. 57].

Webb v. Exide Electronics Ltd. et al. (1999), 177 N.S.R.(2d) 147; 542 A.P.R. 147 (C.A.), refd to. [para. 68].

Exco Corp. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 79].

Conrad v. Snair et al. (1996), 150 N.S.R.(2d) 214; 436 A.P.R. 214 (C.A.), refd to. [para. 79].

Claussen Walters & Associates Ltd. v. Murphy (2002), 201 N.S.R.(2d) 58; 629 A.P.R. 58 (C.A.), refd to. [para. 79].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 85].

Connor v. Canadian Life Assurance Co. (1992), 108 N.S.R.(2d) 361; 294 A.P.R. 361 (T.D.), refd to. [para. 90].

Parnell v. Singer (1992), 111 N.S.R.(2d) 127; 303 A.P.R. 127 (T.D.), refd to. [para. 90].

Thomas-Canning v. Juteau (1993), 122 N.S.R.(2d) 23; 338 A.P.R. 23 (S.C.), refd to. [para. 90].

Cashen v. Donovan (1999), 173 N.S.R.(2d) 87; 527 A.P.R. 87 (S.C.), refd to. [para. 90].

Economical Mutual Insurance Co. v. Elliott (1999), 176 N.S.R.(2d) 375; 538 A.P.R. 375 (S.C.), refd to. [para. 90].

Young v. King (2000), 186 N.S.R.(2d) 265; 581 A.P.R. 265 (S.C.), refd to. [para. 90].

ACA Cooperative Association Ltd. v. Associated Freezers of Canada Inc. et al. (No. 3) (1992), 113 N.S.R.(2d) 1; 309 A.P.R. 1 (C.A.), refd to. [para. 95].

Guardian Insurance Co. of Canada v. Hart­ford Insurance Group et al. (1992), 117 N.S.R.(2d) 382; 324 A.P.R. 382 (C.A.), refd to. [para. 97].

Sparks v. Thompson, [1975] 1 S.C.R. 618; 1 N.R. 387; 6 N.S.R.(2d) 481, refd to. [para. 102].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 102].

Wilson and Keeping v. MacInnis (1992), 111 N.S.R.(2d) 78; 303 A.P.R. 78 (T.D.), refd to. [para. 104].

Blenkhorn v. Correia (1958), 41 M.P.R. 1 (N.S.S.C.), refd to. [para. 108].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 111].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 63.04 [para. 80].

Judicature Act, R.S.N.S. 1989, c. 240, sect. 41(i), sect. 41(k) [para. 91].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Dam­ages in Canada (2nd Ed. 1996), p. 202 [para. 53].

Halsbury's Laws of England (4th Ed.), vol. 12, p. 437, para. 1137 [para. 56].

Counsel:

Anna Marie Butler and Debra Duggan, for the appellant;

Catherine J. Lunn, for the respondent, Attorney General of Nova Scotia;

Michelle C. Awad, for the respondent, Patterson.

This appeal and cross-appeal were heard on January 21, 2002, before Glube, C.J.N.S., Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On April 5, 2002, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Saunders, J.A., dissenting in part - see paragraphs 1 to 100;

Cromwell, J.A. (Glube, C.J.N.S., con­curring) - see paragraphs 101 to 117.