Lownds v. Sperker et al., (2014) 352 N.S.R.(2d) 379 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 14, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 352 N.S.R.(2d) 379 (SC);2014 NSSC 405

Lownds v. Sperker (2014), 352 N.S.R.(2d) 379 (SC);

    1112 A.P.R. 379

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.020

Harold Lownds (plaintiff) v. Anna Sperker and Sacred Heart School of Halifax (defendants)

(Hfx. No. 300344; 2014 NSSC 405)

Indexed As: Lownds v. Sperker et al.

Nova Scotia Supreme Court

MacAdam, J.

November 14, 2014.

Summary:

A 14 year old student was on a night time school ski trip. She had been skiing since age 10 and was approved by the ski patrol to ski down the regular hills. After 4-5 uneventful runs, the student cautiously skied down an icy, steep hill she had not skied before. The student hit a bump and lost control. The student struck and injured the plaintiff skier (separated shoulder), who was stationary on the trail with his back to the hill, talking to other skiers. The plaintiff brought a negligence action for damages against the student.

The Nova Scotia Supreme Court dismissed the action, but provisionally assessed damages. The student was not negligent in falling. The plaintiff was negligent in standing still on a ski trail with his back to oncoming skiers.

Damage Awards - Topic 60

Injury and death - Body injuries - Scapula (shoulder blade) - The plaintiff adult male suffered a grade 3 shoulder separation that was now almost totally resolved without surgery (physiotherapy only) - Although the plaintiff suffered significant pain in the initial healing, there was no long-term discomfort leading to emotional problems and no persistently troubling, but not totally disabling injury - The prognosis was a full return to his previous level of physical activity - The Nova Scotia Supreme Court provisionally assessed $22,000 general damages for non-pecuniary loss - See paragraphs 87 to 93.

Damage Awards - Topic 580

Personal injuries and death - Injury to third parties - General damages for personal care of injured person - The plaintiff adult male suffered a grade 3 shoulder separation - During the initial healing process, the plaintiff's wife provided care for the plaintiff (dressing him, cutting his food, performing his normal household tasks, taking time off work to drive him to appointments, etc.) - The Nova Scotia Supreme Court allowed a quantum meruit claim for the wife's services - The court provisionally assessed $2,000 damages - See paragraphs 102 to 106.

Torts - Topic 50.04

Negligence - Standard of care - Particular persons or relationships - Skiers - A 14 year old student was on a night time school ski trip - She had been skiing since age 10 and was approved by the ski patrol to ski down the regular hills - After 4-5 uneventful runs, the student cautiously skied down an icy, steep hill she had not skied before - The student, after an unsuccessful attempt to slow down, hit a bump and lost control - The student struck and injured the plaintiff skier (separated shoulder), who was stationary on the trail with his back to the hill, talking to other skiers - The Nova Scotia Supreme Court dismissed the plaintiff's negligence action for damages against the student - Skiers falling and colliding with other skiers was common, even without negligence, and an inherent risk accepted by all skiers - The student was skiing under control until she hit a bump - She fell and struck the plaintiff without negligence - Conversely, the plaintiff was negligent in standing still on a ski trail (not off to the side), with his back to oncoming skiers - See paragraphs 68 to 86.

Cases Noticed:

Abbott v. Silver Star Sports Ltd. (1986), 6 B.C.L.R.(2d) 83 (S.C.), refd to. [para. 71].

Marshall v. British Columbia (1988), 23 B.C.L.R.(2d) 320; 1988 CarswellBC 66 (C.A.), refd to. [para. 72].

Feniuk et al. v. Board of Education of School District No. 54 (Bulkley Valley) et al., [1991] B.C.T.C. Uned. 744; 1991 CanLII 646 (S.C.), refd to. [para. 73].

Fink v. Greeniaus (1973), 43 D.L.R.(3d) 485 (Ont. H.C.J.), refd to. [para. 74].

Gilsenan v. Gunning (1982), 137 D.L.R.(3d) 252 (Ont. H.C.J.), refd to. [para. 74].

Hall v. Brooklands Auto Racing Club, [1933] 1 K.B. 205, refd to. [para. 75].

Kempf v. Nguyen, [2013] O.T.C. Uned. 1977; 2013 ONSC 1977, refd to. [para. 77].

Vaughn v. Gallagher, [1997] Y.J. No. 50 (C.A.), refd to. [para. 87].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 97].

Hayward v. Young (2013), 330 N.S.R.(2d) 250; 1046 A.P.R. 250; 2013 NSCA 64, refd to. [para. 87].

Buis v. Centennial Arena Commission (1994), 136 N.S.R.(2d) 33; 388 A.P.R. 33; 1994 CarswellNS 257 (S.C.), refd to. [para. 91].

Pallister v. Nicholson (1990), 100 N.S.R.(2d) 440; 272 A.P.R. 440; 1990 CarswellNS 623 (T.D.), dist. [para. 92].

Doue v. Jones (1995), 148 N.S.R.(2d) 87; 429 A.P.R. 87; 1995 CarsweelNS179 (S.C.), refd to. [para. 92].

Rayner v. Knickle and Kingston (1991), 88 Nfld. & P.E.I.R. 214; 274 A.P.R. 214 (P.E.I.C.A.), refd to. [para. 103].

Teno et al. v. Arnold et al. (1976), 67 D.L.R.(3d) 9 (Ont. C.A.), varied [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 103].

Thomson and Thomson v. MacLean (1983), 57 N.S.R.(2d) 436; 120 A.P.R. 436 (T.D.), refd to. [para. 103].

Landry v. McCormick Estate (1997), 158 N.S.R.(2d) 97; 466 A.P.R. 97 (S.C.), affd. (1997), 161 N.S.R.(2d) 197; 477 A.P.R. 197 (C.A.), refd to. [para. 105].

Gaum v. Wolfe (D.G.) Enterprises Ltd. (1998), 171 N.S.R.(2d) 76; 519 A.P.R. 76 (S.C.), refd to. [para. 108].

Counsel:

Kevin MacDonald and Hilary Branning (summer student), for the plaintiff;

Tara A. Miller and Joshua Martin, for the defendant, Sperker;

William Ryan, Q.C., Nathaniel Marshall and Daniel Mackenzie (articled clerk), for the defendant, Sacred Heart.

This action was heard on June 9-12, 16-17 and 19, 2014, at Halifax, N.S., before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 14, 2014.