Paulse v. Neville and Neville (J.J.) & Sons Ltd., (1977) 12 Nfld. & P.E.I.R. 223 (NFCA)

• Judge: Morgan, Gushue, JJ.A. and Goodridge, J.
• Court: Court of Appeal (Newfoundland)
• Case Date: May 09, 1977
• Jurisdiction: Newfoundland and Labrador
• Citations: (1977), 12 Nfld. & P.E.I.R. 223 (NFCA)

Paulse v. Neville (1977), 12 Nfld. & P.E.I.R. 223 (NFCA);

    25 A.P.R. 223

MLB headnote and full text

Paulse v. Neville and J.J. Neville & Sons Ltd.

Indexed As: Paulse v. Neville and Neville (J.J.) & Sons Ltd.

Newfoundland Supreme Court

Court of Appeal

Morgan, Gushue, JJ.A. and Goodridge, J.

May 9, 1977.

Summary:

This case arose out of the plaintiff's claim in negligence against the defendants for damages arising out of a motor vehicle collision. The plaintiff brought an action against the defendants for damages and in a judgment reported 6 Nfld. & P.E.I.R. 496 the Newfoundland Supreme Court awarded the plaintiff $10,000 general damages for personal injuries and $15,943.93 special damages, including $15,000 for loss of income. The defendants appealed from the award for loss of income.

The Newfoundland Court of Appeal allowed the appeal and reduced the damages for loss of income to $6,569.30 which was the one month's income loss actually substantiated by the evidence. The Court of Appeal held that special damages for loss of income must be strictly proved and that the evidence adduced by the plaintiff did not support the award by the trial judge.

Damages - Topic 1421

Special damages - Loss of business or professional income - Proof of - The plaintiff psychiatrist was injured and in proof of his loss of income merely testified that his income had been reduced by the difference between his Medicare income statements for the year in which he recuperated and the previous year - The trial judge awarded the plaintiff $15,000 for loss of income - The Newfoundland Court of Appeal held that special damages for loss of income must be strictly proved and that the evidence adduced by the plaintiff did not support the award by the trial judge - The Court of Appeal set out the types of evidence which could have been offered to substantiate the claim for loss of income - The Court of Appeal reduced the plaintiff's damages for loss of income to $6,569.30 which was the one month's income loss actually substantiated by the evidence.

Practice - Topic 8802

Appeals - Duty of an appeal court regarding a damage award by a trial judge - Special damages - The Newfoundland Court of Appeal stated that the principle governing an appeal from the assessment of damages by a trial judge to the effect that the appeal court will not interfere unless the award is inordinately excessive or inadequate applied only to general damage awards - The Court of Appeal stated that appeals from special damage awards involved a calculation not an assessment - See paragraph 27.

Cases Noticed:

Fanjoy v. Keller, 6 N.B.R.(2d) 273; [1974] S.C.R. 315, appld. [para. 9].

Williams v. Stephenson (1903), 33 S.C.R. 323, appld. [para. 9].

British Transport Commission v. Gourley, [1956] A.C. 185, appld. [para. 23].

Stroms Bruks Aktie Bolag v. Hutchinson, [1905] A.C. 515, appld. [para. 24].

Ratcliffe v. Evans, [1892] 2 Q.B. 524, appld. [para. 25].

Tucker v. Baker (1976), 10 Nfld. & P.E.I.R. 271, appld. [para. 26].

Khoo Sit Hon v. Lim Thean Tong, [1912] A.C. 323, refd to. [para. 34].

Statutes Noticed:

Rules of the Supreme Court (Nfld.), Order 35, rule 6; Order 54, rule 5 [para. 14].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 11, para. 218 [para. 5].

Kemp and Kemp, The Quantum of Damages (3rd Ed.), vol. 1, p. 21 [para. 9].

Counsel:

Robert Wells, Q.C., for the plaintiff-respondent;

Thomas O'Reilly, for the defendants-appellants.

This case was heard on November 17, 1976, at St. John's, Newfoundland, before MORGAN, GUSHUE, JJ.A., and GOODRIDGE, J., (ex officio) of the Newfoundland Court of Appeal.

On May 9, 1977, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MORGAN, J.A. - see paragraphs 1 - 3,

GUSHUE, J.A. - see paragraphs 4 - 15,

GOODRIDGE, J. - see paragraphs 16 - 43.