Phillips et al. v. Kendall Estate et al., (1994) 132 N.S.R.(2d) 161 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 07, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 132 N.S.R.(2d) 161 (SC)

Phillips v. Kendall Estate (1994), 132 N.S.R.(2d) 161 (SC);

  376 A.P.R. 161

MLB headnote and full text

Jason Phillips, Gwendolyn Phillips, Ronald Link and Christopher Nickerson (plaintiffs) v. The Estate of Gordon Kendall, John A. Dulong and Leonard Dulong (defendants) and Wellington Insurance Company (third party)

(S.Y. No. 2639)

Patrick Sproule and Janet Robinson (plaintiffs) v. The Estate of Gordon Kendall, John A. Dulong and Leonard Dulong (defendants) and Wellington Insurance Company (third party)

(S.Y. No. 2641)

Phyllis Inez Kendall, Administratrix of the Estate of Gordon Elmer Kendall (plaintiff) v. John Arthur Dulong and Leonard Dulong (defendants)

(S.Y. No. 2702)

Indexed As: Phillips et al. v. Kendall Estate et al.

Nova Scotia Supreme Court

MacAdam, J.

July 7, 1994.

Summary:

The defendant Dulong crossed over the centre line of a highway and struck an auto­mobile driven by the deceased Kendall and in which the plaintiffs Phillips and Sproule were passengers. Phillips, Sproule, Kendall's Estate and others (in three separate negli­gence actions) sued the defendant Dulong, the owner of Dulong's vehicle and in the case of Phillips' and Sproules' actions, Ken­dall's Estate was also a defendant.

The Nova Scotia Supreme Court found the defendant Dulong negligent and solely at fault. The court rejected the claim that Ken­dall was contributorily negligent in the manner in which he attempted to avoid the collision. The court assessed damages ac­cordingly, reducing Phillips' damage award by 15% on account of his contributory negligence in failing to wear his seat belt.

Damage Awards - Topic 150

Injury and death - Multiple injuries - The plaintiff adult male suffered a broken ankle, broken jaw and broke his cheek in three places - His jaw was wired shut for two months and his leg was in a cast for six weeks - Complete recovery within three months - The Nova Scotia Supreme Court assessed $10,000 general damages for nonpecuniary loss - See paragraphs 180 to 196.

Damage Awards - Topic 150

Injury and death - Multiple injuries - The plaintiff adult male suffered life-threaten­ing injuries - Fractured eye socket, cheek bone and nose - Teeth smashed - Jaw wired shut - Facial injuries surgically repaired - Ruptured left hemidiaphragm - Compound fracture of right femur, frac­tured left tibia and fibula, fractured radius and ulna of right arm - Multiple scars from surgery - Two plates in right forearm - Plates in right leg and above ankle in left foot - Hospitalized for three weeks, then convalesced at grandparents' home - Permanent partial disabilities of arm and leg - One medical expert fixed the total body disability at 25% - The Nova Scotia Supreme Court assessed $45,000 general damages for nonpecuniary loss - See paragraphs 113 to 128.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff adult male suffered injuries to his right arm, left tibia and right femur that left him permanently partially disabled - One medical expert opined that the total dis­ability was 25% - The plaintiff worked exclusively in the fishing industry and the disability made his chosen work more difficult and in some cases it rendered him unable to maintain his employment - Actuarial evidence as to loss of future earning capacity was not helpful, given unconsidered contingencies and the fact that it was less than a total disability - The Nova Scotia Supreme Court stated that the loss of future earning capacity was best compensated for by way of general dam­ages - The court assessed $50,000 general damages for loss of future earning capacity - See paragraphs 93 to 112.

Damages - Topic 1288

Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - The plaintiff adult male suffered life-threaten­ing injuries that hospitalized him for three weeks - Thereafter he was cared for by his grandparents for 3-4 months - The plaintiff needed assistance bathing, shav­ing, eating, being moved, etc. - Both grandparents missed some work to per­sonally care for the plaintiff - Had the grandparents not personally cared for the plaintiff, someone would have to have been employed for that purpose - The Nova Scotia Supreme Court stated that the grandparents were entitled to compensation on a quantum meruit basis - The court awarded the plaintiff $3,500 in trust for the grandfather and $7,500 in trust for the grandmother - See paragraphs 129 to 149.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence - Failure to use seat belt - The plaintiff passenger was severely injured in a head-on motor vehicle accident - The plaintiff was not wearing an available seat belt - Medical evidence opined that his injuries would have been less severe had a seat belt been worn - The Nova Scotia Supreme Court stated that the plaintiff was contributorily negligent and reduced his damages by 15% - See paragraphs 153 to 165.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger - "Agony of collision" - The defendant motorist crossed the centre line and struck the plaintiff's vehicle - The plaintiff attempted to avoid the defendant by get­ting as far to the right as he could - The plaintiff did not brake - Only seconds were involved between the time the plain­tiff became aware of the defendant's driv­ing over the centre line and the collision itself - The Nova Scotia Supreme Court stated that the plaintiff's attempt to evade the defendant without braking was not unreasonable in the stress of an emergency - The failure to brake did not constitute contributory negligence - See paragraphs 24 to 66.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger - "Agony of collision" - The Nova Scotia Supreme Court stated that "a person who, without negligence on their part, is sud­denly and unexpectedly confronted with an emergency, arising from either the actual presence or the appearance of imminent danger to self or to others, is not expected nor required to use the same judgment and care that is expected in calmer and less hurried moments. Such a person is not required to exercise extraordinary care and control; the duty is to exercise only the care an ordinary, prudent person would exercise in the same situation. The test in such a case is not whether a better course of action was open, but whether what was done was what an ordinary, prudent person might reasonably be expected to do in such an emergency." - See paragraph 50.

Torts - Topic 408

Negligence - Motor vehicle - Rules of the road - Driving to left of centre - The defendant motorist crossed the centre line and struck an oncoming automobile driven by the plaintiff - Neither vehicle braked - The road was dry and visibility was good - The plaintiff had moved his automobile as far to the right as he could - There was no explanation offered as to why the de­fendant crossed over the centre line - The Nova Scotia Supreme Court found the defendant negligent and solely at fault - See paragraphs 2 to 23.

Torts - Topic 6630

Defences - Contributory negligence - Failure to use seat belt - [See Torts - Topic 346 ].

Cases Noticed:

Gauthier & Co. v. R., [1945] 2 D.L.R. 48 (S.C.C.), refd to. [para. 21].

Rowan v. Toronto Railway Co. (1899), 29 S.C.R. 717, refd to. [para. 56].

Phillips v. Dooks (1958), 14 D.L.R.(2d) 401 (N.S.S.C.), refd to. [para. 59].

Vine v. Phillips & Dooks - see Phillips v. Dooks.

Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654, refd to. [para. 60].

Gellie v. Naylor and Laidlaw Transport Ltd. (1986), 15 O.A.C. 129; 28 D.L.R.(4th) 762 (C.A.), refd to. [para. 62].

Walls v. Mussens Ltd. and Morrison (1969), 2 N.B.R.(2d) 131; 11 D.L.R.(3d) 245 (C.A.), refd to. [para. 64].

Poirier v. Dyer and Dyer (1989), 91 N.S.R.(2d) 119; 233 A.P.R. 119 (T.D.), refd to. [paras. 106, 141].

Guy v. Trizec Equities Ltd. et al. (1978), 26 N.S.R.(2d) 1; 40 A.P.R. 1 (C.A.), refd to. [para. 107].

Poirier v. Malcolm (1981), 47 N.S.R.(2d) 616; 90 A.P.R. 616 (T.D.), refd to. [para. 110].

MacKinlay and MacKinlay v. MacEachern and Prudential Assurance Co. (1983), 58 N.S.R.(2d) 175; 123 A.P.R. 175 (T.D.), refd to. [para. 141].

Grover and Grover v. Lowther (1982), 52 N.S.R.(2d) 22; 106 A.P.R. 22 (T.D.), refd to. [para. 141].

Shaw Estate and Shaw v. Roemer and Smith Transport Co. (1982), 51 N.S.R.(2d) 229; 102 A.P.R. 229 (C.A.), refd to. [para. 154].

Froom v. Butcher, [1975] 3 All E.R. 520; [1976] Q.B. 286 (C.A.), refd to. [para. 155].

Statutes Noticed:

Contributory Negligence Act, R.S.N.S. 1967, c. 54, sect. 1, sect. 5 [para. 158].

Fatal Injuries Act, R.S.N.S. 1989, c. 163, generally [para. 187].

Insurance Act, R.S.N.S. 1989, c. 231, sect. 140(2), sect. 146(2) [para. 178].

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 110 [para. 19]; sect. 113 [para. 20].

Counsel:

S. Clifford Hood, for the plaintiffs;

Christopher C. Robinson, for John A. Dulong and Leonard Dulong;

Murray J. Ritch, for the Estate of Gordon Kendall;

David A. Miller, Q.C., for Wellington Insurance Co.,

Martin J. Pink, Q.C., for the plaintiff, Phyllis Inez Kendall.   

These actions were heard on February 14-15, 1994, at Halifax, N.S., before MacAdam, J., of the Nova Scotia Supreme Court, who released the following judgment on July 7, 1994.