Parker v. Parsons, (1997) 160 N.S.R.(2d) 321 (CA)

• Judge: Freeman, Roscoe and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 08, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 160 N.S.R.(2d) 321 (CA)

Parker v. Parsons (1997), 160 N.S.R.(2d) 321 (CA);

    473 A.P.R. 321

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. AU.007

Harold A. Parsons (appellant) v. David Parker (respondent)

(C.A. No. 136329)

Indexed As: Parker v. Parsons

Nova Scotia Court of Appeal

Freeman, Roscoe and Flinn, JJ.A.

July 8, 1997.

Summary:

The plaintiff brought a negligence action for damages against the defendant for injuries suffered in a motor vehicle accident.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, found the defendant negligent and solely at fault. The court awarded the plain­tiff $31,500 general damages for nonpe­cu­niary loss, $18,000 for lost past income, $9,000 for future lost income and $16,830 pre-judgment interest from the date of the accident to the date of judgment. The de­fendant appealed the damage awards.

The Nova Scotia Court of Appeal dis­missed the appeal.

Damage Awards - Topic 11

Injury and death - Continuing pain (incl. myofascial and chronic pain syndrome) - A trial judge awarded the 51 year old plain­tiff $31,500 general damages for nonpecuniary loss for chronic pain in his neck and back - The plaintiff was disabled before the accident due to fecal inconti­nence and suffered from pre-existing back pain - The critical determination was the extent his pre-existing medical problems contributed to his present condition - The plaintiff's own doctor testified that his present condition was 90% attributable to the accident - The defendant's expert witness put the number at 25% - The trial judge accepted the plaintiff's doctor's testi­mony - The Nova Scotia Court of Appeal held that the trial judge committed no error in accepting the plaintiff's doctor's testi­mony - Further, the damage award fell within the range for this type of injury, so interference by the court was unwarranted - See paragraphs 5 to 30.

Damages - Topic 1630

General damages - Considerations in assessing general damages - Loss of income - Effect of unreported income - The plaintiff was totally disabled and in receipt of federal and provincial benefits - The plaintiff also earned income which he had not reported to the respective govern­ments - The defendant claimed that unre­ported income should not be considered, on public policy grounds, in calculating damages for lost income, past and future - The Nova Scotia Court of Appeal stated that "the failure to report such income does not, in and of itself, operate as a bar to making a claim for the loss of such income in the appropriate case" - Where the trial judge accepted the evidence of the lost income, the fact that it had not been reported to the authorities was not relevant to calculating the plaintiff's damage award - See paragraphs 31 to 39.

Interest - Topic 5011

As damages (pre-judgment interest) - Interest on nonpecuniary general damages - A trial judge awarded the plaintiff pre-judgment interest on his lost past income and his nonpecuniary general damage award - The Nova Scotia Court of Appeal held that if a nonpecuniary damage award included a factor for inflation, awarding pre-judgment interest on that award would constitute double recovery for inflation - Where, as here, it was clear that the trial judge did not include in the award a factor for infla­tion, it was permissible to award pre-judgment interest on the nonpecuniary damage award - See paragraphs 40 to 44.

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - The Nova Scotia Court of Appeal stated that the standard of review of fact findings by a trial judge was "a Court of Appeal must not interfere with a trial judge's conclu­sions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it ... A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal." - See paragraph 18.

Practice - Topic 8802

Appeals - Duty of appellate court regard­ing damage awards by a trial judge - A defendant appealed the quantum of dam­ages awarded to a plaintiff - The Nova Scotia Court of Appeal restated the stan­dard of review: "the appellate court ... must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage." - See paragraph 27.

Practice - Topic 8820

Appeals - Duty of appellate court re find­ings of credibility by trial judge - The Nova Scotia Court of Appeal restated that "this and other appellate courts have said time after time that the credibility of witnesses is a matter peculiarly within the province of the trial judge. He has the distinct advantage, denied appeal court judges, of seeing and hearing the witnesses; of observing their demeanour and conduct, hearing their nuances of speech and subtlety of expression and generally is presented with those intan­gibles that so often must be weighed in determining whether or not a witness is truthful. These are the matters that are not capable of reflection in the written record and it is because of such factors that save strong and cogent reasons appellate tribu­nals are not justified in reversing a finding of credibility made by a trial judge. Par­ticularly is that so where, as here, the case was heard by an experienced trial judge." - See paragraph 23.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 18].

Travelers Indemnity Co. v. Kehoe (1985), 66 N.S.R.(2d) 434; 152 A.P.R. 434 (C.A.), refd to. [para. 23].

Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; 116 N.R. 1; 44 O.A.C. 81; 71 Man.R.(2d) 81, refd to. [para. 25].

Mailman v. Dartmouth Yacht Club (1992), 114 N.S.R.(2d) 441; 313 A.P.R. 441 (C.A.), refd to. [para. 27].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 29].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 34].

Frenette v. Audet (1988), 89 N.B.R.(2d) 306; 226 A.P.R. 306 (C.A.), disagreed with [para. 34].

Iannone v. Hoogenraad (1992), 66 B.C.L.R.(2d) 106 (C.A.), refd to. [para. 35].

Kiani et al. v. Minto Developments Inc. (1997), 24 O.T.C. 254 (Gen. Div.), refd to. [para. 36].

Rustecki v. Da Silva (1992), 10 O.R.(3d) 637 (Gen. Div.), refd to. [para. 36].

Counsel:

Nancy Murray, for the appellant;

Harry W. How, Q.C., and David J. Bright, Q.C., for the respondent.

This appeal was heard on June 16, 1997, before Freeman, Roscoe and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On July 8, 1997, Flinn, J.A., delivered the following judgment for the Court of Appeal.