Sharpe v. Abbott, 2007 NSCA 6

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 18, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 6;(2007), 250 N.S.R.(2d) 228 (CA)

Sharpe v. Abbott (2007), 250 N.S.R.(2d) 228 (CA);

    796 A.P.R. 228

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.060

Thomas W. Abbott and Patrick W. Abbott (appellants) v. Tammy Murina Sharpe (respondent)

(CA 263736; 2007 NSCA 6)

Indexed As: Sharpe v. Abbott

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

January 18, 2007.

Summary:

In 1998, the 22 year old unemployed plaintiff was injured in a minor rear-end collision. Although initially receiving only treatment for soft tissue injuries to her neck and shoulder, the plaintiff subsequently complained of hip and leg pain, which led to a diagnosis of serious chronic pain. The plaintiff, who had a spotty work history, claimed to be totally disabled from employment due to pain. The plaintiff sued the defendants for damages. It was a jury trial. The defendant challenged the plaintiff's veracity and work ethic, and submitted that there was no causal connection between her hip and leg pain and the accident. The jury found the defendants negligent and awarded a total of $750,000 damages, being $225,000 general damages for nonpecuniary loss, $70,000 for past lost income, $400,000 for loss of future earning capacity, $5,000 for future care and $5,000 for loss of valuable services. The defendants appealed, submitting that (1) they were denied a fair trial given the cumulative effect of errors by the trial judge in exercising his discretion on certain procedural and evidentiary matters; (2) the damage award was perverse and a wholly erroneous estimate of the plaintiff's damages; and (3) the trial judge erred in the quantum of costs.

The Nova Scotia Court of Appeal allowed the appeal to the limited extent of reducing the award of general damages for nonpecuniary loss from $225,000 to $100,000, and reducing costs by a proportionate amount. All other damage awards were affirmed as being reasonable.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - [See Damages - Topic 1543 ].

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See Damages - Topic 1543 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - In 1998, the 22 year old plaintiff suffered injuries in a minor rear-end collision - She suffered soft tissue injuries to her neck and shoulder and later developed chronic pain in her hip and leg, which rendered her indefinitely disabled from employment - The plaintiff was unable to walk without pain or sit for more than 15 minutes at a time - A jury awarded $225,000 general damages for nonpecuniary loss - The jury was not instructed on the "rough upper limit" of general damages for nonpecuniary loss (currently $300,000) - The Nova Scotia Court of Appeal stated that the Supreme Court of Canada had determined that, in cases of catastrophic injuries, a jury should be instructed on the upper limit of damages if satisfied that there was a danger of the jury exceeding that limit - Otherwise, it was best not to instruct the jury on the limit - Whether a jury should be instructed on the upper limit in cases of lesser or non-catastrophic injuries was as yet unresolved - The court stated that "assessing damages for non-catastrophic injuries cannot simply be a matter of comparing the seriousness of the plaintiff's injuries with those of the plaintiffs in the trilogy and scaling the award back from the maximum" - Applying a functional approach, the award of $225,000 was unreasonable, not open to the jury on the evidence and reflected palpable and overriding error - The court stated that "the award itself cannot stand when measured against decisions of this court and other appellate courts involving appeals from awards challenged as being perverse" - The court reduced the award to $100,000 - See paragraphs 113 to 153.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The Nova Scotia Court of Appeal stated that damages for diminished future earning capacity "was intended to compensate for diminished earning capacity which is seen as a loss to a capital asset, as opposed to a mathematical calculation of projected future lost income" - See paragraph 156.

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - The plaintiff brought an action for damages against the defendants for injuries suffered in a motor vehicle accident - In challenging the damage award on appeal, the defendants complained that the plaintiff's counsel, in summation to the jury, made inappropriate and unfair comments resulting in the defendants being denied a fair trial - The Nova Scotia Court of Appeal rejected the submission - The court noted that the comments now attacked were not subject to any comment by the trial judge or the defendants' counsel - A failure to object, while not determinative, was a factor to be considered - In the context of the defendants' attack on the plaintiff's credibility, work ethic, maturity, etc., counsel's comments in summation were neither inappropriate nor unfair - There was no prejudice to the defendants - See paragraphs 33 to 39.

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - Where reference to insurance - In a motor vehicle negligence action for damages, there was some concern that the jury became aware of the existence of insurance due to a reference to an insurance company in an exhibit - The trial judge was not satisfied that the jury noticed the reference, but offered to instruct the jury that whether or not there was any insurance was irrelevant to their determinations - The defendants consented to the instruction, but now claimed the trial judge should have withdrawn the matter from the jury - The Nova Scotia Court of Appeal held that the trial judge did not err - The court stated that "a jury will not automatically be discharged if it is disclosed that a defendant is covered by insurance. The decision whether to discharge the jury is a matter within the trial judge's discretion. In exercising that discretion, the trial judge must weigh all of the circumstances and decide whether the reference to insurance has caused real prejudice to the defendant, in the sense that a substantial wrong or miscarriage of justice has occurred, thus making it appear that it would be unfair to continue with the present jury. ... Finally, I would also observe that automobile insurance is mandatory in Nova Scotia. I expect such a notorious fact is well within the common knowledge of persons chosen for jury duty. This would seem to me to be relevant consideration for any trial judge to take into account." - See paragraphs 56 to 63.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - [See Damages - Topic 1543 ].

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - The Nova Scotia Court of Appeal stated that "a jury's verdict will not be disturbed unless it is so plainly unreasonable and unjust as to satisfy us that no jury reviewing the evidence as a whole and acting judicially could have reached it. ... While great deference must be afforded the jury on both findings of fact and the assessment of damages, appellate courts will intercede when satisfied that the jury's award is one that 'shocks the conscience' of the court, and reflects 'palpable and overriding' error as being out of all proportion to proper compensation for such injuries and loss. ... Appellate courts 'have a responsibility to moderate clearly erroneous awards in order to promote a reasonable degree of fairness and uniformity in the treatment of similarly situated plaintiffs ...'" - See paragraphs 109 to 110.

Cases Noticed:

Eng v. Chahoud et al. (1999), 180 N.S.R.(2d) 274; 557 A.P.R. 274 (C.A.), refd to. [para. 37].

Rogers v. Young (2000), 185 N.S.R.(2d) 197; 575 A.P.R. 197 (C.A.), refd to. [para. 37].

Morriscey v. Zwicker (2001), 192 N.S.R.(2d) 268; 599 A.P.R. 268 (C.A.), refd to. [para. 37].

Campbell v. Jones et al. (2002), 209 N.S.R.(2d) 81; 656 A.P.R. 81 (C.A.), refd to. [para. 37].

Jessome v. Walsh (2003), 213 N.S.R.(2d) 251; 667 A.P.R. 251 (C.A.), refd to. [para. 37].

Noiles v. Chase et al., [2004] N.S.R.(2d) Uned. 76 (C.A.), refd to. [para. 37].

de Araujo v. Read (2004), 196 B.C.A.C. 271; 322 W.A.C. 271 (C.A.), refd to. [para. 39].

Hallren v. Holden, [1913] B.C.J. No. 41 (C.A.), refd to. [para. 39].

Hamstra et al. v. British Columbia Rugby Union et al., [1997] 1 S.C.R. 1092; 211 N.R. 89; 89 B.C.A.C. 161; 145 W.A.C. 161, refd to. [para. 63].

Webber v. Canada Permanent Trust Company (1976), 18 N.S.R.(2d) 631; 20 A.P.R. 631 (C.A.), refd to. [para. 74].

Moore et al. v. Economical Mutual Insurance Co. (1999), 177 N.S.R.(2d) 269; 542 A.P.R. 269 (C.A.), refd to. [para. 74].

Hillier v. Mann (2001), 199 N.S.R.(2d) 238; 623 A.P.R. 238 (S.C.), refd to. [para. 78].

R. v. Emkeit, [1974] S.C.R. 133, refd to. [para. 86].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 109].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601, refd to. [para. 109].

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26, refd to. [para. 110].

Jessen v. CHC Helicopters International Inc. (2006), 245 N.S.R.(2d) 316; 777 A.P.R. 316; 2006 NSCA 81, refd to. [para. 110].

Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 111].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 114].

ter Neuzen v. Korn - see Neuzen v. Korn.

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 119].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 119].

Corkum v. Sawatzky et al. (1993), 118 N.S.R.(2d) 137; 327 A.P.R. 137 (T.D.), refd to. [para. 120].

Koukounakis v. Stainrod (1995), 81 O.A.C. 36 (C.A.), refd to. [para. 122].

Hawley et al. v. Skerry et al. (1984), 61 N.S.R.(2d) 195; 133 A.P.R. 195 (S.C.), refd to. [para. 123].

Stapley v. Hejslet (2006), 221 B.C.A.C. 272; 364 W.A.C. 272; 2006 BCCA 34, leave to appeal denied (2006), 361 N.R. 91 (S.C.C.), refd to. [para. 124].

Pettipas v. Klingbeil et al. (2000), 260 A.R. 1 (Q.B.), refd to. [para. 125].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247 (C.A.), refd to. [para. 125].

Adam v. Johnson Estate (1994), 121 Sask.R. 283 (Q.B.), refd to. [para. 125].

Voulgaris v. Kereluk (1992), 80 Man.R.(2d) 108 (Q.B.), refd to. [para. 125].

Cameron v. Excelsior Life Insurance Co., [1981] 1 S.C.R. 138; 35 N.R. 213; 44 N.S.R.(2d) 91; 83 A.P.R. 91, refd to. [para. 137].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 131].

White v. Gait et al. (2004), 204 B.C.A.C. 234; 333 W.A.C. 234; 2004 BCCA 517, refd to. [para. 131].

Giang v. Clayton et al. (2005), 207 B.C.A.C. 279; 341 W.A.C. 279; 2005 BCCA 54, refd to. [para. 131].

Gagnon v. Frey et al., [2005] A.R. Uned. 35; 2005 ABCA 106, refd to. [para. 131].

Padfield v. Martin (2003), 172 O.A.C. 256; 64 O.R.(3d) 577 (C.A.), refd to. [para. 131].

Marinelli et al. v. Keigan et al. (1999), 173 N.S.R.(2d) 56; 527 A.P.R. 56 (C.A.), dist. [para. 140].

Woods v. Hubley (1995), 146 N.S.R.(2d) 97; 422 A.P.R. 97 (C.A.), dist. [para. 140].

Binder v. Mardo Construction Ltd. et al. (1994), 136 N.S.R.(2d) 20; 388 A.P.R. 20 (C.A.), dist. [para. 140].

Jaillet v. Allain (1995), 165 N.B.R.(2d) 161; 424 A.P.R. 161 (T.D.), dist. [para. 140].

Lee v. Dawson et al. (2006), 224 B.C.A.C. 199; 370 W.A.C. 199 (C.A.), dist. [para. 140].

Dilello v. Montgomery (2005), 208 B.C.A.C. 165; 344 W.A.C. 165; 2005 BCCA 56, dist. [para. 140].

Kern v. Steele (2003), 220 N.S.R.(2d) 51; 694 A.P.R. 51 (C.A.), refd to. [para. 146].

Quintal v. Datta and Skochylas, [1988] 6 W.W.R. 481; 68 Sask.R. 104 (C.A.), refd to. [para. 153].

Foreman v. Foster (2001), 147 B.C.A.C. 254; 241 W.A.C. 254 (C.A.), refd to. [para. 153].

Brisson v. Brisson (2002), 168 B.C.A.C. 255; 275 W.A.C. 255; 2002 BCCA 279, refd to. [para. 153].

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271; 2002 NSCA 47, refd to. [para. 156].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, refd to. [para. 156].

Authors and Works Noticed:

Cassels, Jamie, Remedies: The Law of Damages (2000), p. 161 [para. 121].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 114 [para. 121].

Waddams, Stephen M., The Law of Damages (2005 Looseleaf Update), p. 3.610 [para. 21].

Counsel:

Jean McKenna, for the appellants;

Derrick Kimball and Nash Brogan, for the respondent.

This appeal was heard on October 11, 2006, at Halifax, N.S., before Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On January 18, 2007, Saunders, J.A., delivered the following judgment for the Court of Appeal.