MacDonald v. Alderson and Manitoba, (1982) 15 Man.R.(2d) 35 (CA)

• Judge: Hall, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 20, 1981
• Jurisdiction: Manitoba
• Citations: (1982), 15 Man.R.(2d) 35 (CA)

MacDonald v. Alderson (1982), 15 Man.R.(2d) 35 (CA)

MLB headnote and full text

MacDonald v. Alderson and Manitoba, Province of

(No. 169/81)

Indexed As: MacDonald v. Alderson and Manitoba

Manitoba Court of Appeal

Hall, O'Sullivan and Huband, JJ.A.

March 25, 1982.

Summary:

The plaintiff brought a negligence action for damages for personal injuries. The plaintiff motorcyclist collided with the defendant driver's vehicle. The Manitoba Court of Queen's Bench in a decision reported in 8 Man.R.(2d) 202, allowed the action in part, holding that both the plaintiff and defendant were 50% at fault. The court assessed $150,000.00 general damages for nonpecuniary loss and $1,698,346.68 for pecuniary loss. The defendants appealed and the plaintiff cross-appealed liability and damages. The Manitoba Court of Appeal dismissed the appeal on liability, allowed the appeal on damages and dismissed the cross-appeal. The court assessed $770,046.68 damages including $130,000.00 non-pecuniary damages and $85,046.68 special damages. Huband, J.A., dissenting in paragraphs 89 to 158 below, would have allowed the appeal on liability, holding the plaintiff 75% at fault and the defendants 25% at fault.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - 19 year old male high school graduate active in sports and social activities - Permanent brain damage with blindness in right eye and impaired vision in left - Loss of senses of smell and taste - Impaired sense of touch in left hand and loss of strength in left arm - Spasticity and weakness in legs - Functional at grade 6 level - Post-traumatic epileptic seizures - Personality change - The Manitoba Court of Appeal assessed $130,000.00 non-pecuniary general damages - See paragraph 16 to 18; 53 and 54.

Damages - Topic 1543

General damages for personal injury - Pain, suffering, loss of amenities and other nonpecuniary damages - The Manitoba Court of Appeal increased an assessment for nonpecuniary general damages from the $100,000.00 limit established in 1978 to $130,000.00 to account for inflation since 1978 - See paragraphs 53 and 54.

Damages - Topic 1546

General damages for personal injury - Discount or capitalization rate and present value of future payments - The Manitoba Court of Appeal applied a discount rate of 3% to wage and nonwage related expenses in a calculation of general damages for personal injuries - See paragraph 79.

Damages - Topic 1548

General damages for personal injuries - Management of fund fee - The Manitoba Court of Appeal held that a $20,000.00 management fee was appropriate for an assessed damage award of $770,046.68 - The plaintiff obtained judgment for 1/2 of the assessed damages - See paragraphs 83 to 88.

Damages - Topic 1550

General damages for personal injury - Prospective loss of wages or earnings - The Manitoba Court of Appeal discussed and referred to factors to be considered in assessing general damages for prospective loss of earnings and loss of employer benefits - See paragraphs 78 to 81.

Damages - Topic 1567

General damages for personal injury - Future care and treatment - The Manitoba Court of Appeal discussed and referred to the method of calculating general damages for cost of future care and treatment - See paragraphs 55 to 77.

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - The Manitoba Court of Appeal stated that unless there is some manifest error in the trial judge's decision on an issue of liability, the appellate court should not substitute its opinion - See paragraph 8.

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - The defendant driver was in the middle of a six lane divided highway in an attempt to cross the highway, when the plaintiff motorcyclist, a northbound highway driver, hit the defendant - The Manitoba Court of Appeal affirmed a trial judge's decision that the defendant was negligent and 50% at fault for not keeping a proper lookout and crossing the highway before it was safe.

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - The defendant driver was in the middle of a six lane divided highway, in an attempt to cross the highway, when the northbound plaintiff motorcyclist hit the defendant - The Manitoba Court of Appeal affirmed a trial judge's decision that the plaintiff was negligent and 50% at fault for not keeping a proper lookout and driving too fast.

Torts - Topic 6655

Defences - Ultimate negligence - Application of doctrine - The plaintiff and defendant were in a motorcycle-motor vehicle accident - The defendant submitted that by using reasonable care the plaintiff could have avoided the accident, so was guilty of ultimate negligence - The Manitoba Court of Appeal held that the plaintiff's failure made him guilty of contributory negligence and ultimate negligence did not apply - See paragraph 34.

Cases Noticed:

Andrews et al. v. Grand & Toy (Alberta) Ltd., [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, folld. [paras. 10, 53, 94].

Lindal v. Lindal, [1982] 1 W.W.R. 433; 39 N.R. 361, consd. [paras. 15, 53, 109].

McLeod v. Palardy (1980), 4 Man.R.(2d) 218, affd. (1981), 10 Man.R.(2d) 181, refd to. [paras. 24, 95].

R. v. McBurney, [1975] 2 W.W.R. 448, refd to. [para. 38].

R. v. Chandok (1973), 12 C.C.C.(2d) 500, refd to. [para. 38].

Fenn v. Corporation of the City of Peterborough (1979), 9 C.C.L.T. 1; 25 O.R.(2d) 399; 104 D.L.R.(3d) 174, refd to. [paras. 53, 99].

Hatton et al. v. Henderson (1980), 20 B.C.L.R. 234, refd to. [para. 53].

Sabel v. Williamson (1967), 58 W.W.R.(N.S.) 718 (Man. C.A.), affd. 63 W.W.R.(N.S.) 576, refd to. [para. 78].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) 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, folld. [para. 94].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, folld. [para. 94].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 95].

Henderson v. Hatton, [1981] 5 W.W.R. 624, refd to. [para. 106].

Jeselon et al. v. Waters (1981), 27 B.C.L.R. 191, refd to. [para. 155].

Authors and Works Noticed:

Munkman, Damages for Personal Injuries and Death (1973) [para. 41].

Goldsmith on Damages (1978-81 Supp.) [para. 85].

Counsel:

W.G. McFetridge and R.S. Perozzo, for the appellants;

I.R.A. MacMillan and P.C. Freeman, for the respondent.

This case was heard on October 20, 1981, by HALL, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal. On March 25, 1982, the decision of the Court of Appeal was delivered and the following opinions were filed:

HALL, J.A. - see paragraphs 1 to 32;

O'SULLIVAN, J.A. - see paragraphs 33 to 88;

HUBAND, J.A., dissenting in part - see paragraphs 89 to 158.