Powell v. Léger et al.

• Jurisdiction: New Brunswick
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Judge: Rideout, J.
• Citation: 2003 NBQB 105,(2003), 260 N.B.R.(2d) 80 (TD)
• Date: 11 March 2003
• Subject Matter: DAMAGES,DAMAGE AWARDS,TORTS

Powell v. Léger (2003), 260 N.B.R.(2d) 80 (TD);

    260 R.N.-B.(2e) 80; 684 A.P.R. 80

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.B.R.(2d) TBEd. MR.038

Steven Powell, as per his litigation guardian, Jacqueline Powell and Art Powell and Jacqueline Powell (plaintiffs) v. Léo Léger and Claudette Bordage (defendants)

(M/C/0925/00; 2003 NBQB 105)

Indexed As: Powell v. Léger et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

March 11, 2003.

Summary:

The 16 year old plaintiff brought a negli­gence action for damages for personal in­juries suffered in a T intersection motor vehicle accident. The plaintiff (dominant driver) struck the defendant (servient driver) after she entered the through highway from a stop sign. The plaintiff was rendered a hemiplegic in the accident (one side of body paralyzed).

The New Brunswick Court of Queen's Bench, Trial Division, found the plaintiff negligent and 80% at fault, where his exces­sive speed was the predominant cause of the accident. The defendant was negligent and 20% at fault for pulling out onto the high­way when she could have or should have seen the plaintiff. The court assessed dam­ages accordingly.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - A 1999 motor vehicle accident left the 16 year old plaintiff with brain damage resulting in hemiplegia (one side of body paralyzed) - The plaintiff had greatly diminished mental capacities (cog­nitive skills now in bottom 10% of popula­tion) - The plaintiff suffered behavioral problems and violent outbursts - He re­quired 24 hour supervision and was unem­ployable - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was left with "little meaning­ful life activity" - Recognizing that the present value of the upper limit of general damage awards was $275,000, the court assessed $235,000 general damages for nonpecuniary loss - See paragraphs 125 to 134.

Damage Awards - Topic 120

Injury and death - Head injuries - Result­ing in paralysis - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - A 1999 motor vehicle accident left the 16 year old plaintiff with brain damage result­ing in hemiplegia (one side of body para­lyzed) - The plaintiff had greatly dimin­ished mental capacities (cognitive skills now in bottom 10% of population), suf­fered behavioral problems and violent outbursts, required 24 hour supervision and was unemployable - The New Brunswick Court of Queen's Bench, Trial Division, assessed $2,300,361.15 general damages for future care - See paragraphs 149 to 164.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - A 1999 motor vehicle accident left the 16 year old plaintiff with brain damage resulting in hemiplegia (one side of body paralyzed) - The plaintiff had greatly diminished mental capacities (cognitive skills now in bottom 10% of population), suffered behavioral problems and violent outbursts, required 24 hour supervision and was unemployable - There was no employment history and uncertainty as to what level of education he would have obtained - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that it was probable that the plaintiff would have graduated high school and college, but not university - The court accepted that the plaintiff would have worked from age 22 until retirement at age 58 - After contingency deductions, the court accepted actuarial evidence that a comparable college graduate would earn $34,900 per year - The court assessed the present value of the plaintiff's lost future earnings at $766,334 - See paragraphs 141 to 148.

Damages - Topic 1527

General damages - Elements of general damages - Loss of opportunity (incl. mar­riage and family opportunities) - A 1999 motor vehicle accident left the 16 year old plaintiff with brain damage resulting in hemiplegia (one side of body paralyzed) - The plaintiff had greatly diminished mental capacities (cognitive skills now in bottom 10% of population), suffered behavioral problems and violent outbursts, required 24 hour supervision and was unemployable - The plaintiff claimed $50,000 general damages for the loss of the ability to enter a permanent relationship with another person and have a family - The New Brunswick Court of Queen's Bench, Trial Division, declined to assess damages for this loss of opportunity - More evidence was needed than some evidence that the plaintiff was unable to establish relation­ships or parent a child - See paragraphs 165 to 170.

Torts - Topic 416

Negligence - Motor vehicle - Rules of the road - Right of way - Crossing, entering or exiting through street or highway - [See Torts - Topic 451 ].

Torts - Topic 438

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Yield or stop sign - [See Torts - Topic 451 ].

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - The plaintiff and another vehicle were travelling north on a through highway at speeds well in excess of the speed limit - They were allegedly racing or playing games - The defendant stopped at a T intersection stop sign, turned left onto the through highway and was shortly there­after struck from behind by the plaintiff - The plaintiff alleged that the defendant (servient driver) was negligent in pulling out onto the highway when it was unsafe to do so - The defendant alleged that she did not see the plaintiff (dominant driver) when she pulled out, that the cause of the accident was his excessive speed and fail­ure to see her - The New Brunswick Court of Queen's Bench, Trial Division, found the plaintiff negligent and 80% at fault - The predominant cause of the accident was the plaintiff's excessive speed - Further, the defendant's vehicle should have been seen by the plaintiff in time to stop - The defendant was negligent and 20% at fault for entering the through highway when she could have or should have seen the plain­tiff's vehicle - See paragraphs 92 to 124.

Cases Noticed:

Day & Ross Inc. v. Randall et al. (2001), 236 N.B.R.(2d) 317; 611 A.P.R. 317 (C.A.), refd to. [para. 94].

Gamblin v. O'Donnell et al. (2001), 244 N.B.R.(2d) 102; 634 A.P.R. 102 (C.A.), refd to. [para. 95].

Walker v. Brownlea and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 96].

Basque v. Dugas et al. (1976), 14 N.B.R.(2d) 196; 15 A.P.R. 196 (T.D.), refd to. [para. 97].

Arsenault v. Belanger (2002), 254 N.B.R.(2d) 353; 664 A.P.R. 353 (C.A.), affing. (2001), 240 N.B.R.(2d) 384; 622 A.P.R. 384 (Q.B.), refd to. [para. 99].

MacLean v. Thomson et al. (1999), 171 Nfld. & P.E.I.R. 98; 525 A.P.R. 98 (P.E.I.T.D.), dist. [para. 100].

Herman v. Woodworth (1999), 176 N.S.R.(2d) 357; 538 A.P.R. 357 (S.C.), refd to. [para. 101].

Goodwin Estate v. Johnston et al., [2002] N.B.R.(2d) (Supp.) No. 88 (Q.B.), refd to. [para. 102].

McAdam et al. v. McIlveen et al. (2002), 252 N.B.R.(2d) 35; 658 A.P.R. 35 (C.A.), refd to. [para. 103].

McAdam et al. v. McIlveen et al. (2002), 252 N.B.R.(2d) 185; 658 A.P.R. 185 (C.A.), refd to. [para. 103].

Trites v. Geldart, [2001] N.B.R.(2d) (Supp.) No. 63 (Q.B.), refd to. [para. 105].

McKim v. Oakley, [1994] B.C.J. No. 1130 (S.C.), affd. (1995), 63 B.C.A.C. 132; 104 W.A.C. 132 (C.A.), refd to. [para. 106].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al. (1978), 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 130].

Dryden et al. v. Campbell Estate et al., [2001] O.T.C. 143 (Sup. Ct.), refd to. [para. 131].

Ligate et al. v. Abick et al. (1996), 89 O.A.C. 355; 28 O.R.(3d) 1 (C.A.), refd to. [para. 132].

Hawkes v. Nolais et al. (2002), 253 N.B.R.(2d) 371; 660 A.P.R. 371 (C.A.), refd to. [para. 164].

Reekie v. Messervey (1989), 59 D.L.R.(4th) 481 (B.C.C.A.), refd to. [para. 165].

Statutes Noticed:

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 165(1), sect. 166, sect. 167(a) [para. 92].

Rules of Court (N.B.), rule 54.05 [para. 68].

Counsel:

Tracey K. Deware and Aaron J. Bourque, for the plaintiffs;

Charles A. LeBlond, Q.C., for the defen­dants.

This action was heard on January 27-30 and February 3-4 and 10-11, 2003, before Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on March 11, 2003.