Nystuen v. Vigoren et al., (2006) 279 Sask.R. 1 (CA)

• Judge: Sherstobitoff, Lane and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 10, 2006
• Jurisdiction: Saskatchewan
• Citations: (2006), 279 Sask.R. 1 (CA);2006 SKCA 47

Nystuen v. Vigoren (2006), 279 Sask.R. 1 (CA);

    372 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. MY.077

Sheldon Vigoren and Marie Evans (appellants) v. Colin Nystuen (respondent) and Trevor Olynick (respondent) and Spencer Marshall (non-party)

(No. 989)

Trevor Olynick (appellant) v. Colin Nystuen (respondent) and Sheldon Vigoren and Marie Evans (respondents)

(No. 992)

(2006 SKCA 47)

Indexed As: Nystuen v. Vigoren et al.

Saskatchewan Court of Appeal

Sherstobitoff, Lane and Richards, JJ.A.

May 10, 2006.

Summary:

The plaintiff was a passenger in a car driven by Olynick. Olynick drove through a stop sign and collided with a car driven by Vigoren. The plaintiff sustained a serious brain injury. The plaintiff sued Olynick, Vigoren and Evans (the owner of the car driven by Vigoren). A jury found Olynick 85% responsible for the accident and Vigoren 15% responsible. The jury assessed the plaintiff's total damages at $2,425,160 and it concluded that the plaintiff's damages should be reduced by 15% because of his failure to wear a seat belt. Olynick, Vigoren and Evans appealed, arguing that the trial judge committed errors in relation to the instructions given to the jury, various procedural matters and the admission of evidence.

The Saskatchewan Court of Appeal allowed the appeal and ordered a new trial.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counselling) - The Saskatchewan Court of Appeal stated that "the root purpose of awarding management fees is to ensure fairness and the long-term integrity of the damage award. Plaintiffs must be fully compensated but, on the other hand, defendants must not overpay. Accordingly, if the evidence satisfactorily establishes that the engagement of management services will involve no net cost to the plaintiff then, as a matter of principle, there should be no award in relation to the fees associated with such services" - See paragraph 119.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counselling) - A jury awarded the plaintiff substantial damages for injuries sustained in a motor vehicle accident - At trial, the defendants argued that there should be no allowance made in the award for the fees of a fund manager because those fees would be more than offset by the extra earnings generated through the fund manager's expertise - One of the defendants also presented an expert report from a management and economic consultant (Hildebrand), which concluded that historical rates of return from portfolios of 40% common stock and 60% bonds and treasury bills would pay for fund management expenses - The trial judge rejected the expert evidence on the basis that it was speculative - The Saskatchewan Court of Appeal held that the trial judge erred - The "historical data approach" used by Hildebrand had been recognized and employed in cases dealing with discount rates - While there were grounds on which calculations of that kind could be challenged, the trial judge should not have rejected Hildebrand's evidence on the basis that it was speculative - See paragraphs 114 to 123.

Evidence - Topic 4208

Witnesses - Privilege - Communications to public officials or boards - Compulsory reports to police officers - Section 83 of the Highway Traffic Act required the driver of a vehicle involved in an accident to report the accident to a peace officer and to provide such information about the accident as was necessary to complete an accident report - Section 84 provided that, other than to prove compliance with s. 83, such a statement or report was not admissible in evidence for any other purpose in any trial arising out of the accident - Following a motor vehicle accident, the defendant driver gave a warned statement to an RCMP officer - The RCMP officer did not ask for a compulsory statement under the Highway Traffic Act and he subsequently completed a motor vehicle report by using information from the warned statement - The trial judge held that the officer's use of the information contained in the warned statement to complete the motor vehicle accident report form as required by s. 83 of the Act did not turn the warned statement into a s. 83 statement or clothe it with the protection of s. 84 - The Saskatchewan Court of Appeal agreed with the trial judge's conclusions - See paragraphs 47 to 58.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The plaintiff passenger suffered a serious brain injury in a motor vehicle accident - He sued the drivers of the vehicles involved for damages - The trial judge qualified Kumar as an expert to give evidence for the plaintiff in relation to biomechanics and ergonomics, including the effects of force on the tissue of the brain - The Saskatchewan Court of Appeal held that the trial judge erred in qualifying Kumar to give opinion evidence in relation to "the effects of force on the tissues of the brain" - He was not a neurologist and he had no medical qualifications - See paragraphs 59 to 74.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The 14 year old plaintiff suffered a serious brain injury in a motor vehicle accident - He sued the drivers of the vehicles involved and was awarded damages - Sears, a "pro amateur" scout for the New York Rangers and a former Director of Player Personnel and Head Scout for the Red Deer Rebels Major Junior Hockey Club, gave opinion evidence for the plaintiff regarding his hockey skills and future potential - The Bantam draft for boys of the plaintiff's age had been held a few days after the accident and Sears had scouted the plaintiff - The Saskatchewan Court of Appeal found no reviewable error in the trial judge's decision that Sears was qualified to give evidence concerning the plaintiff's potential as a professional hockey player - The plaintiff's relative strengths and weaknesses as a hockey player and his potential for moving up in the hockey ranks was the sort of subject-matter that ordinary people were unlikely to form a correct judgment about if unassisted by someone with special knowledge - See paragraph 112.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See second Damages - Topic 1548 ].

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See second Evidence - Topic 7001 ].

Practice - Topic 4160

Discovery - General principles - When available - [See both Practice - Topic 4191 ].

Practice - Topic 4191

Discovery - Examination - General - Re-examination - The Saskatchewan Court of Appeal stated that "A second examination for discovery can be ordered in special circumstances where the court is satisfied that it is necessary in the interests of justice ... However, after pre-trial proceedings have been completed, the justification for ordering further discoveries must be compelling. This court recently stated that, once a case is set for trial and the trial date has been assigned, 'the pre-trial proceedings are not to be reopened in the absence of an applicant establishing that a significant and unexpected change in circumstance has occurred, or that a manifest injustice is likely to occur if the pre-trial proceedings are not reopened' ... This test must be applied with rigor when the application is made during the course of the trial" - See paragraphs 41 to 42.

Practice - Topic 4191

Discovery - Examination - General - Re-examination - The plaintiff passenger sued the defendant driver for damages for injuries sustained in a motor vehicle accident - The defendant advanced a defence based on the plaintiff's failure to wear a seat belt - One of the keys to that defence was establishing the plaintiff's position in the defendant's vehicle - On the second day of trial, the plaintiff moved for an order permitting him to conduct a second examination for discovery of the defendant with respect to the issue of where the plaintiff was seated in the defendant's vehicle - The motion stated that the opening address of the defendant's counsel was the first indication that the defendant was challenging where the plaintiff was seated - The trial judge allowed re-examination of the defendant - The Saskatchewan Court of Appeal held that the trial judge erred in allowing the defendant to be re-examined - It was not clear how the plaintiff could have been taken by surprise when the issue of seating positions was raised in opening argument - Moreover, if necessary, it was open to the plaintiff to call the defendant as a witness - See paragraphs 34 to 46.

Practice - Topic 4413

Discovery - Order for examination for discovery - Order for further examination - [See both Practice - Topic 4191 ].

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - The plaintiff passenger was seriously injured in a motor vehicle accident - He sued the drivers of the two motor vehicles involved in the accident for damages - At trial, the plaintiff's counsel pursued a theme to the effect that the defence was hiding evidence - Specifically, counsel persistently pursued the notion that there had been beer in one of the vehicles and that it had been removed from the scene and hidden - However, there was no evidence of there being alcohol in the car or of its being hidden - The Saskatchewan Court of Appeal held that the trial judge should have advised the jury that the approach taken by the plaintiff's counsel was inappropriate - The court stated that in the course of a jury address, counsel should not make assertions about facts which were not underpinned by the evidence - See paragraphs 124 to 131.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment (incl. seat belts) - The Saskatchewan Court of Appeal discussed the issue of the extent to which liability could be apportioned to a plaintiff for failing to wear a seat belt - After considering the different approaches to the issue, the court held that it preferred the approach taken in Froom v. Butcher (Eng. C.A.) - The court also held that there were compelling reasons why the 25% figure referred to in Froom should apply as a firm cap - The court concluded that "in cases where the plaintiff is contributorily negligent for not wearing a seatbelt, his or her award should be reduced within a range of 0% to 25%. The 25% upper limit is applicable in situations where substantially all of the damages could have been prevented by wearing a seat belt and the lower limit, 0%, is applicable where seat belt use would have made no difference. The allocation between those two figures depends on the extent to which the injuries would have been prevented by seat belt use" - See paragraphs 77 to 103.

Torts - Topic 378

Negligence - Motor vehicle - Standard of care of driver - Emergencies - [See Torts - Topic 552 ].

Torts - Topic 552

Negligence - Motor vehicle - Evidence and burden of proof - Failure to avoid situation created by other driver - The plaintiff was a passenger in a car driven by Olynick - Olynick drove through a stop sign and across the path of a car driven by Vigoren - The vehicles collided - The plaintiff was injured - A jury found Olynick 85% responsible for the accident and Vigoren 15% responsible - On appeal, the Saskatchewan Court of Appeal held that the trial judge's charge to the jury with respect to Vigoren's alleged negligence was defective - The trial judge failed to adequately set out the theory of Vigoren's defence and, in doing so, failed to adequately explain the legal principles in Walker v. Brownlee (S.C.C.) - The issue was whether, after a driver exercising reasonable care would have become aware of the hazard created by Olynick proceeding through the intersection, the driver would have been able to avoid the collision using reasonable care and skill - See paragraphs 18 to 31.

Torts - Topic 556

Negligence - Motor vehicle - Evidence and burden of proof - Emergencies or imminent danger - [See Torts - Topic 552 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - [See Torts - Topic 346 ].

Torts - Topic 6630

Defences - Contributory negligence - Particular cases - Failure to use safety equipment (incl. seat belts) - [See Torts - Topic 346 ].

Cases Noticed:

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), consd. [para. 19].

Haase v. Pedro (1970), 21 B.C.L.R.(2d) 273 (C.A.), affd. [1971] S.C.R. 669, refd to. [para. 20].

Nanji v. Mercs (1993), 135 A.R. 197; 7 Alta. L.R.(3d) 435 (C.A.), refd to. [para. 20].

Thiessen v. Friesen et al. (1997), 118 Man.R.(2d) 285; 149 W.A.C. 285 (C.A.), refd to. [para. 20].

Beggs v. Layh (1981), 8 Sask.R. 331 (Q.B.), refd to. [para. 20].

Selinger v. Stuermer (1983), 26 Sask.R. 247 (Q.B.), refd to. [para. 20].

Mallin v. Clark, [1955] 5 D.L.R. 220 (Sask. C.A.), refd to. [para. 20].

Irvine v. Metropolitan Transport Co., [1933] 4 D.L.R. 682 (Ont. C.A.), refd to. [para. 21].

Oneil v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), refd to. [para. 32].

Petijevich v. Law (1968), 1 D.L.R.(3d) 690 (S.C.C.), refd to. [para. 32].

Hosie v. Hosie and Stewart, [1975] 1 W.W.R. 597 (Sask. Q.B.), refd to. [para. 41].

G.L. v. Canada (Attorney General) et al. (2004), 254 Sask.R. 286; 336 W.A.C. 286 (C.A.), refd to. [para. 42].

Berry v. Cypost Corp. et al., [2003] B.C.T.C. 1876; 2003 BCSC 1876, refd to. [para. 42].

Tompkins v. Ternes (1960), 33 W.W.R.(N.S.) 455 (Sask. C.A.), refd to. [para. 55].

Smith Transport Ltd. et al. v. Vanderyagt (1957), 11 D.L.R.(2d) 166 (Ont. C.A.), refd to. [para. 55].

Parker v. Saskatchewan Hospital Association, [2001] 7 W.W.R. 230; 207 Sask.R. 121; 247 W.A.C. 121 (C.A.), refd to. [para. 67].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 67].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111, refd to. [para. 67].

Rieger et al. v. Burgess et al., [1988] 4 W.W.R. 577; 66 Sask.R. 1 (C.A.), consd. [para. 70].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84; 4 Alta. L.R.(4th) 51 (C.A.), not folld. [para. 79].

Snushall v. Fulsang et al. (2005), 202 O.A.C. 297; 258 D.L.R.(4th) 425 (C.A.), leave to appeal refused (2006), 353 N.R. 194 (S.C.C.), consd. [para. 80].

Froom v. Butcher, [1975] 3 All E.R. 520 (C.A.), consd. [para. 82].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 84].

Fowler et al. v. Schneider National Carriers Ltd. et al. (2001), 193 N.S.R.(2d) 206; 602 A.P.R. 206 (C.A.), refd to. [para. 84].

Pelletier et al. v. Olson et al. (1987), 59 Sask.R. 212 (Q.B.), dist. [para. 85].

Eberle v. Bonsor and Bonsor (1989), 77 Sask.R. 85 (Q.B.), dist. [para. 85].

Jones v. Wilkins, [2000] E.W.J. No. 6965 (C.A.), refd to. [para. 87].

Capps v. Miller, [1989] 2 All E.R. 333 (C.A.), refd to. [para. 87].

Jones v. Cheesebrough et al., [2003] A.R. Uned. 117; 2003 ABQB 196, refd to. [para. 93].

Chae v. Min et al., [2005] 9 W.W.R. 10; 367 A.R. 161; 346 W.A.C. 161 (C.A.), consd. [para. 96].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 110].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 111].

Townsend v. Kroppmanns et al., [2004] 1 S.C.R. 315; 316 N.R. 279; 192 B.C.A.C. 144; 315 W.A.C. 144, consd. [para. 116].

Smithson et al. v. Saskem Chemicals Ltd. et al., [1986] 1 W.W.R. 145; 43 Sask.R. 1 (Q.B.), refd to. [para. 116].

Joubert v. Rosetown (Town) and Sled (1987), 60 Sask.R. 200 (C.A.), refd to. [para. 123].

Statutes Noticed:

Highway Traffic Act, S.S. 1986, c. H-3.1, sect. 82, sect. 83, sect. 84 [para. 49].

Authors and Works Noticed:

Adair, Geoffrey D.E., On Trial: Advocacy Skills Law and Practice (2nd Ed. 2004), p. 199 [para. 129].

Cooper-Stevenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 404 [para. 123].

Counsel:

Gary Zabos and Heather Laing, for Sheldon Vigoren and Marie Evans;

Reginald Watson, Q.C., for Trevor Olynick;

Ron Gates, Q.C., and Sheldon Stener, for Colin Nystuen.

This appeal was heard on December 7 and 8, 2005, before Sherstobitoff, Lane and Richards, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Richards, J.A., on May 10, 2006.