MacPhail v. Desrosiers et al., (1998) 173 N.S.R.(2d) 273 (CA)

• Judge: Freeman, Hallett and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 09, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 173 N.S.R.(2d) 273 (CA)

MacPhail v. Desrosiers (1998), 173 N.S.R.(2d) 273 (CA);

    527 A.P.R. 273

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JA.040

Dr. Jacques Desrosiers and Jean Palmer (appellants) v. Wanda MacPhail, Carol M. Newbury, Craig MacPhail, Susan Arsenault and Oscar Arsenault (respondents)

(C.A. No. 144651)

Indexed As: MacPhail v. Desrosiers et al.

Nova Scotia Court of Appeal

Freeman, Hallett and Bateman, JJ.A.

November 9, 1998.

Summary:

MacPhail drove herself to an abortion clinic. Clinic personnel knew she was alone and would be driving herself home. Mac­Phail was in an emotional state. She was given a mild sedative (Ativan) and a local anaesthetic during the abortion. After spend­ing 30-45 minutes in recovery, and appear­ing to be fine, MacPhail drove herself home. MacPhail inexplicably crossed the centre line and struck a vehicle driven by Arsenault, injuring a passenger (Newbury). MacPhail brought an action for damages against the abortion clinic staff, submitting that they should not have permitted her to drive her­self home. Newbury brought a negligence action for damages for personal injury against MacPhail et al. The two actions were ordered to be heard together.

The Nova Scotia Supreme Court, in a judgment reported 166 N.S.R.(2d) 81; 498 A.P.R. 81, held that the clinic doctor and nurse were negligent and solely at fault in both actions. They had a duty to advise MacPhail not to drive her­self given the risk of fainting due to the emotional reaction to an abortion. MacPhail was not contributorily negligent. The court assessed MacPhail's damages. Damages for Newbury were deferred for later determina­tion. The doctor and nurse appealed the finding of liability and the damage award for loss of future earning capacity. The plaintiff was awarded $41,393 in party and party costs.

The Nova Scotia Court of Appeal, in a judgment reported 165 N.S.R.(2d) 32; 495 A.P.R. 32, affirmed that the doctor and nurse were negligent, but reduced the award for loss of future earning capacity from $516,297 to $395,125 on the ground that the trial judge erred in failing to factor in con­tingencies. The issue of the costs at trial and appeal was reserved for argument.

The Nova Scotia Court of Appeal, in the following supplementary decision on costs, reduced the plaintiff's trial costs to $34,564 to reflect the reduction in the damage award. The court fixed the plaintiff's costs on appeal at $8,000.

Practice - Topic 8330

Costs - Appeals - Costs of appeal - Divided success - The defendants in a motor vehicle negligence action unsuc­cessfully appealed against liability, but were successful in having the $724,547.66 damage award reduced by $111,172 - The defendants submitted that given the divided success, each side should bear their own costs on appeal - The Nova Scotia Court of Appeal agreed with the plaintiff that liability was the far more important issue before the court - The court awarded the plaintiff 40% of the trial costs calculated by the application of Tariff A without applying any gross up of trial costs made under rule 41A - To reflect the defendants' partial success on appeal, the court reduced the $10,306 cost award on appeal by a further 20% - In the result, the plaintiff was awarded $8,000 as costs on appeal.

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 63.08 [para. 5].

Counsel:

Daniel M. Campbell, Q.C., and Colin J. Clarke, for the appellants;

Robert L. Barnes, Q.C., for the respon­dents, Wanda and Craig MacPhail;

Suzanne M. Fougère, for Wanda MacPhail, appellant on cross-appeal;

Ronald Pizzo and Pauline A. Doucette, for the respondents, Carol M. and William Newbury.

This appeal was heard on May 20, 1998, before Freeman, Hallett and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On November 9, 1998, Hallett, J.A., delivered the following supplementary judg­ment on costs for the Court of Appeal.