Rieger et al. v. Burgess et al., (1988) 66 Sask.R. 1 (CA)

• Judge: Tallis, Cameron and Vancise, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 27, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 66 Sask.R. 1 (CA);1988 CanLII 209 (SK CA);1988 CanLII 209 (BS SC);[1988] 4 WWR 577;66 Sask R 1

Rieger v. Burgess (1988), 66 Sask.R. 1 (CA)

MLB headnote and full text

William Rieger, Phyllis Rieger, Michele Rieger, Mark Rieger and Michael Rieger, an infant suing by his next friend William Rieger (plaintiffs/respondents) v. Keith A. Burgess and Carman Agri Services Ltd. (defendants/appellants)

(No. 9279)

Indexed As: Rieger et al. v. Burgess et al.

Saskatchewan Court of Appeal

Tallis, Cameron and Vancise, JJ.A.

April 22, 1988.

Summary:

The plaintiffs were injured in an automobile accident. The defendants admitted liability and damages were assessed by a six member jury. The plaintiffs applied for judgment in accordance with the answers given by the jury; the defendants applied for a mistrial.

The Saskatchewan Court of Queen's Bench, in a decision reported in 50 Sask.R. 272, awarded judgment in part according to the answers given by the jury. The court reassessed the amount for nonpecuniary loss on the ground that the amount awarded by the jury was excessive. The defendants appealed respecting certain of the damages awarded to three of the plaintiffs (William, Phyllis and Michele Rieger). (For decisions respecting a stay of proceedings pending appeal and payment of monies into and out of court, see 53 Sask.R. 199, 201, 202).

The Saskatchewan Court of Appeal allowed the appeal and ordered a new trial on the assessment of the three plaintiffs' damages.

Damages - Topic 65

Considerations in assessing damages - Inflation - In a personal injury action, a dentist claimed damages for loss of net income and loss of future earning capacity - The accident occurred in 1981; in 1985-86 the dentist sold his dental practice, assets and premises to his son and continued thereafter as a consultant on a monthly salary - The Saskatchewan Court of Appeal held that in calculating damages the dentist's earnings prior to trial should not have been adjusted for inflation, by calculating net average professional income for 1979-85 in terms of 1986 dollars - The court held that an award of damages which took inflation into account contained an element of prejudgment interest and distorted the basis on which the award was made - See paragraphs 144 to 161.

Damages - Topic 1541

General damages - For personal injury - Value or effect of previous or extra-provincial awards - The Saskatchewan Court of Appeal held that it is proper for a trial judge to give meaningful guidance to the jury's deliberations by giving guidelines on the reasonable range of (damage) awards for pecuniary and nonpecuniary losses - The judge in reviewing the evidence will stress the important findings of fact the jury must make, which no doubt will be related to the range of awards he discusses with them - Counsel may not address the jury on this point - Since the Supreme Court of Canada has placed a judicial "cap" on nonpecuniary losses, the jury should be so instructed - See paragraphs 134 to 142.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - A dentist claimed damages for, inter alia, loss of earning capacity respecting a 1981 car accident - In 1985-86 he sold his practice, equipment and business property to his son, thereafter receiving a monthly salary for consulting services - The Saskatchewan Court of Appeal held that the documents pertaining to this transaction were admissible so that the jury could consider, in its assessment of such damages, the fact that the dentist's earning capacity was attributable to his "hands on" work as a dentist and his business acumen in operating a dental practice - See paragraphs 43 to 48.

Damages - Topic 1550

General damages - For personal injury - Prospective loss of wages or earnings - [See Damages - Topic 65 above].

Damages - Topic 1550.1

General damages - For personal injury - Pretrial loss of wages or earnings - [See Damages - Topic 65 above].

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - In a personal injury action, the plaintiffs provided particulars of their injuries, but failed to plead the alleged existence of brain injury or post-concussive syndrome - This possibility was also not canvassed on discovery, mentioned at the pretrial conference or disclosed in the medical reports made available to defence counsel before trial - The defendants inexplicably failed to object at trial to admission of brain injury evidence, seek an adjournment or offer rebuttal - The jury awarded high nonpecuniary damages based on such evidence - The Saskatchewan Court of Appeal held that admission of the impugned evidence, because it was not placed in issue in advance, resulted in a miscarriage of justice - See paragraphs 67 to 84.

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - The Saskatchewan Court of Appeal discussed the effect of failure to object at trial to the admission of evidence impugned on appeal - See paragraphs 67 to 78.

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - A psychiatrist testified respecting the plaintiffs' possible brain injury and post-concussive syndrome, although he was clearly not qualified as an expert in neurology - The Saskatchewan Court of Appeal held that such evidence, in the absence of evidence of proper qualifications, should not have been admitted at trial - At the very least the trial judge ought to have instructed the jury that it was evidence beyond the expertise of the doctor and warned them of the fraility of the basis for it and the weight they should give to it - The court held that the defence's failure to object at trial to its admission did not bar objection on appeal, where admission resulted in a miscarriage of justice - See paragraphs 93 to 101.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Saskatchewan Court of Appeal stated that an expert is generally called to testify to provide information to enable the court or a jury to understand technical and scientific issues raised in the litigation - They are also called upon to provide opinions and conclusions in areas where the courts or jury are unable to make the necessary inferences from the technical facts presented - See paragraph 87.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that witness is an expert - The Saskatchewan Court of Appeal stated that the role of an expert is circumscribed by his area of expertise - It is essential that the witness be shown to possess the necessary qualifications and skill in the area or field in which his opinion is sought - Those qualifications and skill can be based upon or derived from academic study or practical experience - The subject matter of the opinion must be sufficiently within the expert's field and the opinion must be of assistance to the trier of fact - The expert should be cross-examined as to his capacity or qualification, or evidence should be offered to establish the witness' competency, by counsel opposing the admission of the opinion evidence - The trial judge must form his opinion of the witness' capacity to testify as an expert on the basis of the evidence before him - The ruling, though a question of fact, is subject to review on appeal - See paragraphs 88, 90, 92.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that witness is an expert - The Saskatchewan Court of Appeal referred to the procedure to be used in challenging the competency of an expert to testify - See paragraph 94.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - [See third Evidence - Topic 507 above].

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - Hearsay - The Saskatchewan Court of Appeal stated that expert witnesses may testify to their opinion on matters involving their expertise and may base their opinion on hearsay - Opinion based on hearsay is admissible but it is not proof of the facts stated - The party tendering the opinion evidence has a duty to establish through admissible evidence the factual basis for the opinion - See paragraphs 103 to 109.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - Hearsay - A psychiatrist testified respecting the plaintiffs' possible brain injury and post-concussive syndrome - His opinion was based on hearsay - The defendants complained that the plaintiffs failed to establish, through properly admissible evidence, the factual basis on which his opinion was based - The Saskatchewan Court of Appeal agreed with the defendants - See paragraphs 109 to 122.

Practice - Topic 1302

Pleadings - Purpose of - The Saskatchewan Court of Appeal referred to the purpose of pleadings - See paragraphs 54 to 55.

Practice - Topic 1458

Pleadings - Statement of claim - Damages - Necessity of claiming - The Saskatchewan Court of Appeal discussed whether in an action for personal injury arising out of an automobile accident, matters in aggravation or mitigation of damages need be pleaded - See paragraphs 49 to 57.

Practice - Topic 1901

Pleadings - Particulars - General - The Saskatchewan Court of Appeal stated that generally speaking, particulars are binding and, unless otherwise permitted by the trial judge on such terms as he may direct, the parties cannot lead evidence of matters beyond their scope - See paragraph 59.

Practice - Topic 5186

Juries and jury trials - Verdicts - Variation of verdict by trial judge - The Saskatchewan Court of Appeal held that once a jury has been properly instructed on the judicial "cap" respecting damages for nonpecuniary loss and the appropriate range of damages, it is inappropriate for the trial judge to vary the jury's award - The appropriate remedy would be an appeal - See paragraph 143.

Practice - Topic 5194

Juries and jury trials - Jury charge - Respecting evidence - Expert evidence - A psychiatrist testified respecting the plaintiffs' possible brain injury and post-concussive syndrome - His opinion was based on hearsay - The Saskatchewan Court of Appeal examined the trial judge's jury charge respecting the expert opinion - The court held that the judge erred in not explaining the factual basis that was required to be established before the opinion could be accepted or to explain what weight, if any, could be given to the opinion - See paragraphs 123 to 127.

Practice - Topic 5194

Juries and jury trials - Jury charge - Respecting evidence - A jury was charged to assess damages in a personal injury case - The Saskatchewan Court of Appeal examined the trial judge's charge and held that the judge erred in (i) making little or no reference to the salient parts of the evidence applicable to each of the plaintiffs and (ii) making little or no attempt to relate the evidence to the principles applicable to the assessment of damages - Accordingly, the court found the charge perfunctory and warranted a new trial - See paragraphs 131 to 132.

Practice - Topic 5197

Juries and jury trials - Jury charge - Respecting assessment of damages - [See second Practice - Topic 5194 above].

Practice - Topic 5197

Juries and jury trials - Jury charge - Respecting assessment of damages - Future pecuniary loss - A jury was charged to assess damages in a personal injury case - The Saskatchewan Court of Appeal stated "we do stress the importance of an explicit and careful direction on the meaning of the present cash value of money in relation to an award for future pecuniary loss ... The jury instructions must carry a clear message that any award for future pecuniary loss must be only for its present cash value ... Where a present cash value table is presented to a jury for use in making calculations, explicit directions must be given with respect to the essential findings of fact which they must first make before turning their minds to the calculation of the damages using the tables" - See paragraph 133.

Practice - Topic 5197

Juries and jury trials - Jury charge - Respecting assessment of damages - [See Damages - Topic 1541 above].

Practice - Topic 8806

Appeals - Duty of appellate court regarding damage awards by a jury - The defendants, who admitted liability, appealed a series of damage awards, as assessed by a jury and reassessed by the trial judge - The Saskatchewan Court of Appeal held that in the absence of agreement between the parties, it lacked jurisdiction to assess the damages if it decided that an award could not stand - The court held that it would therefore be limited to ordering a new trial - See paragraph 12.

Cases Noticed:

Decorby v. Wascana Winter Club, (1980), 3 Sask.R. 96, refd to. [para. 12].

Pat v. Illinois Publishing and Printing Company, [1929] 2 W.W.R. 14, refd to. [para. 12].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232, appld. [para. 12].

Mulroy v. Aqua Scene et al. (1982), 36 O.R.(2d) 653, refd to. [para. 12].

Tannas v. Mosser, [1930] 4 D.L.R. 192 (Sask. C.A.), refd to. [para. 52].

Farrell v. Secretary of State, [1980] 1 All E.R. 166, refd to. [para. 57].

Jacker v. The International Cable Company (1888), 5 T.L.R. 13, refd to. [para. 68].

R. v. The Ship "Emma K" et al., [1936] S.C.R. 256, refd to. [para. 69].

Georgia Construction Co. v. Pacific Eastern Ry. Co., [1929] S.C.R. 630, refd to. [para. 70].

Young v. Denton and Tate, [1927] 1 W.W.R. 75 (Sask. C.A.), refd to. [para. 71].

Clark v. Grand Trunk Railway Co. of Canada (1869), 29 U.C.Q.B. 136, refd to. [para. 72].

Gage v. Reid (1916-17), 38 O.R. 514, refd to. [para. 74].

D. v. B. (1917), 40 O.R. 112, refd to. [para. 75].

Rice v. Sockett (1912), 27 O.L.R. 410, refd to. [para. 88].

R. v. Fisher, [1961] O.W.N. 94, affd. [1961] S.C.R. 535, refd to. [para. 89].

Kelliher v. Smith, [1931] S.C.R. 672, refd to. [para. 92].

Preeper v. R. (1888), 15 S.C.R. 401, refd to. [para. 92].

R. v. Abbey (1982), 43 N.R. 30; 138 D.L.R.(3d) 202 (S.C.C.), refd to. [para. 103].

R. v. Rosik, [1971] 2 O.R. 47; 2 C.C.C.(2d) 351; 13 C.R.N.S. 129 (C.A.), refd to. [para. 104].

R. v. Jordan (1984), 39 C.R.(3d) 50 (B.C.C.A.), refd to. [para. 109].

Gray v. Alanco Developments Ltd. et al., [1967] 1 O.R. 597 (C.A.), refd to. [para. 136].

Howes et al. v. Crosby et al. (1984), 2 O.A.C. 375; 45 O.R.(2d) 449 (C.A.), refd to. [para. 137].

Andrews v. Grand and Toy (Alberta) Limited, [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 137].

Thornton v. Board of School Trustees of School District No. 57, [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480; 3 C.C.L.T. 257, refd to. [para. 137].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, refd to. [para. 137].

Halliday v. Sanrud, 15 B.C.L.R. 4, refd to. [para. 137].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; [1982] 1 W.W.R. 433; 129 D.L.R.(3d) 263, refd to. [para. 138].

Byron v. Williams et al. (1968), 67 D.L.R.(2d) 111 (S.C.C.), refd to. [para. 140].

Crosby v. O'Reilly, [1975] 2 S.C.R. 381, refd to. [para. 140].

Horseshoe Creek Farms Ltd. v. Sterling Service Structures Co. Ltd. et al. (No. 2) (1982), 15 Sask.R. 57 (C.A.), refd to. [para. 152].

Miller v. Riches, [1984] 2 W.W.R. 726; 50 A.R. 92; 5 D.L.R.(4th) 1 (C.A.), refd to. [para. 153].

Leitch Transport Ltd. v. Neonex International Ltd. et al. (1979), 106 D.L.R.(3d) 315 (Ont. C.A.), refd to. [para. 155].

Pickett v. British Rail Engineering Ltd., [1978] 3 W.L.R. 955 (H.L.), refd to. [para. 155].

Genessee Holdings Ltd. et al. v. West York Motors Canada (Ltd.) (1978), 6 C.P.C. 63 (Ont. C.A.), refd to. [para. 156].

McCaig et al. v. Reys et al. (1978), 90 D.L.R.(3d) 13; 7 B.C.L.R. 367, refd to. [para. 157].

Rieger v. Burgess (No. 3), 15 C.P.C.(2d) 201, refd to. [para. 166].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 139 [paras. 51-53, 56]; rule 149 [paras. 51-53]; rule 153 [paras. 51, 56].

Prejudgment Interest Act, S.S. 1984-85-86, c. P-22.2, sect. 8 [para. 152].

Authors and Works Noticed:

Cleary, The Use of Pleadings (1951), 40 Ky. L.J. [para. 54].

Odgers on Practice and Pleading (20th Ed.), pp. 100-101 [para. 56]; 160-161 [para. 59].

Schiff, Evidence in the Litigation Process (1978), pp. 118-119 [para. 76].

Sopinka and Lederman, Evidence in Civil Cases (1974), pp. 303 [para. 94]; 473-475 [para. 77].

Beven, Negligence (4th Ed.), p. 141 [para. 91].

Deslisle, Annotation to R. v. Jordan (1984), 39 C.R.(3d) 50 [para. 110].

Watson, Garry, Assisting the Jury in Assessing General Damages (1970), 48 Can. Bar Rev. 565 [para. 136].

Counsel:

G.L. Gerrand, Q.C., and K.A. Phillips, for the appellants;

K.W. Noble and R.A. Watson, for the respondents.

This appeal was heard before Tallis, Cameron and Vancise, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on April 27, 1988.