Melanson v. Steen, (2009) 345 N.B.R.(2d) 262 (TD)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 11, 2009
• Jurisdiction: New Brunswick
• Citations: (2009), 345 N.B.R.(2d) 262 (TD);2009 NBQB 176

Melanson v. Steen (2009), 345 N.B.R.(2d) 262 (TD);

  345 R.N.-B.(2e) 262; 889 A.P.R. 262

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Temp. Cite: [2009] N.B.R.(2d) TBEd. JL.026

Renvoi temp.: [2009] N.B.R.(2d) TBEd. JL.026

Sandra Melanson (plaintiff) v. Linda Steen and Robert Steen (defendants)

(S/C/37/08; 2009 NBQB 176; 2009 NBBR 176)

Indexed As: Melanson v. Steen

Répertorié: Melanson v. Steen

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

McLellan, J.

June 11, 2009.

Summary:

Résumé:

The plaintiff suffered a badly broken lower right leg and ankle in a motor vehicle accident. The defendants admitted liability.

The New Brunswick Court of Queen's Bench, Trial Division, awarded a total of $104,571.01 damages, including $70,000 general damages.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - The plaintiff, then aged 65, suffered a badly broken lower right leg (grade lll - C open tibial fracture with segmental fractures of her midshaft tibia) and right ankle (trimalleolar fracture and pilon type configuration) in a motor vehicle accident - She spent approximately seven weeks in hospital and six months laid-up at home - She picked up a hospital infection that was not cured for some months - The New Brunswick Court of Queen's Bench, Trial Division, awarded $70,000 general damages - The injury was a near amputation - Although the leg was saved, she suffered from swelling and discomfort - If the plaintiff had not had this accident, she would have had a fine, comfortable, secure and steady senior-citizen phase leading eventually into old age - Because of the accident she now had substantial limitations on her activity level and faced the prospect of increasing pain and trouble leading to more surgery - See paragraphs 1 to 37 and 51.

Damage Awards - Topic 133

Injury and death - Leg injuries - Multiple leg fractures or injuries - [See Damage Awards - Topic 125 ].

Damage Awards - Topic 456

Injury and death - Special damage awards - Specialized equipment - The plaintiff, then aged 65, suffered a badly broken lower right leg and ankle in a motor vehicle accident - She spent approximately seven weeks in hospital and six months laid-up at home - The plaintiff claimed for a treadmill, a stability ball, and a wobble board - The New Brunswick Court of Queen's Bench, Trial Division, stated that $1,300 for those items was realistic, but questioned whether or not those specific items were the best return on investment or perhaps some other things - The court allowed $2,000 for home exercise equipment - See paragraph 44.

Damage Awards - Topic 457

Injury and death - Special damage awards - Cost of therapy - The plaintiff, then aged 65, suffered a badly broken lower right leg and ankle in a motor vehicle accident - She spent approximately seven weeks in hospital and six months laid-up at home - The plaintiff had been getting physio 2.5 times a month or so, ideally once a week as things were now - By approximately September it looked as if she would no longer be receiving free physio service - Based on her life expectancy which (approximately 18.9 years), the plaintiff's counsel came up with a cost of long-term physio with a present value of $37,000 - Counsel for the defence suggested that at some point she was likely going to get enough routines and exercise such that she would not necessarily be going to weekly physio - Further, if she had the corrective surgery to reduce pain involving ankle fusion, that might reduce and alter the amount of ongoing physio that she might need - The New Brunswick Court of Queen's Bench, Trial Division, fixed the future allowance for physio at $20,000 - See paragraphs 39 to 41.

Damage Awards - Topic 460

Injury and death - Special damage awards - Loss of housekeeping capacity - The plaintiff, then aged 65, suffered a badly broken lower right leg and ankle in a motor vehicle accident - She spent approximately seven weeks in hospital and six months laid-up at home - The plaintiff claimed for valuable services for homemaking and in effect the replacement of homemaking service - The New Brunswick Court of Queen's Bench, Trial Division, found that because of the accident the plaintiff now had substantial limitations on her activity level and faced the prospect of increasing pain and trouble leading to more surgery - This had to be tempered by the fact that a lot of people when they got into their seventies and eighties like to have some help with the heavier housework - Counsel for the plaintiff calculated three hours of weekly homemaking assistance over the plaintiff's life expectancy (over 18 years) for a total of $21,661 - However, after the plaintiff reached age 75, she might have wanted someone to come in and help with that anyway - Accordingly, the court allowed $10,000 - See paragraph 47.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 460 ].

Damages - Topic 1450

Special damages - Transportation - The plaintiff, then aged 65, suffered a badly broken lower right leg and ankle in a motor vehicle accident - She claimed for, inter alia, mileage at 30 cents a kilometer from her home to physio in Sussex - The New Brunswick Court of Queen's Bench, Trial Division, held that where the plaintiff had to go to Sussex regularly anyway to get groceries or to go to the doctor or for other purposes, it was not satisfied that it was fair to charge for the mileage for her to go there - See paragraph 42.

Évaluation des dommages-intérêts - Cote 125

Blessures et décès - Blessures à la jambe - Cheville - [Voir Damage Awards - Topic 125 ].

Évaluation des dommages-intérêts - Cote 133

Blessures et décès - Blessures à la jambe - Blessures ou fractures multiples - [Voir Damage Awards - Topic 133 ].

Évaluation des dommages-intérêts - Cote 456

Blessures et décès - Évaluation des dommages-intérêts particuliers - Equipment spécialisé - [Voir Damage Awards - Topic 456 ].

Évaluation des dommages-intérêts - Cote 457

Blessures et décès - Évaluation des dommages-intérêts particuliers - Coût du traitement - [Voir Damage Awards - Topic 457 ].

Évaluation des dommages-intérêts - Cote 460

Blessures et décès - Évaluation des dommages-intérêts particuliers - Perte de capacité d'entretien ménager - [Voir Damage Awards - Topic 460 ].

Évaluation des dommages-intérêts - Cote 495

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de capacité d'entretien ménagère - [Voir Damage Awards - Topic 495 ].

Dommages-intérêts - Cote 1450

Dommages-intérêts particuliers - Transport - [Voir Damages - Topic 1450 ].

Cases Noticed:

Doucet v. Crittenden (2001), 246 N.B.R.(2d) 36; 638 A.P.R. 36 (T.D.), consd. [para. 35].

Cleghorn v. Dunbar (2005), 285 N.B.R.(2d) 163; 744 A.P.R. 163; 2005 NBQB 247 (T.D.), consd. [para. 35].

Counsel:

Avocats:

David G. Gauthier, on behalf of the plaintiff;

Michael D. Brenton, on behalf of the defendants.

This case was heard on June 10 and 11, 2009, by McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision orally on June 11, 2009.