Shaw Estate, Shaw and Nova Scotia v. Roemer, Smith Transport Co. Ltd. and Canadian Pacific Co. Ltd.; Brooks and Brooks v. Roemer and Smith Transport Co. Ltd., (1981) 46 N.S.R.(2d) 629 (TD)

• Judge: Richard, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 07, 1981
• Jurisdiction: Nova Scotia
• Citations: (1981), 46 N.S.R.(2d) 629 (TD)

Shaw Estate v. Roemer (1981), 46 N.S.R.(2d) 629 (TD);

    89 A.P.R. 629

MLB headnote and full text

Shaw's Estate, Shaw, Nova Scotia, Province of v. Roemer, Smith Transport Company Limited and Canadian Pacific Company Limited; Brooks and Brooks v. Roemer and Smith Transport Company Limited

(S.K. 687)

Indexed As: Shaw Estate, Shaw and Nova Scotia v. Roemer, Smith Transport Co. Ltd. and Canadian Pacific Co. Ltd.; Brooks and Brooks v. Roemer and Smith Transport Co. Ltd.

Nova Scotia Supreme Court

Trial Division

Richard, J.

April 7, 1981.

Summary:

The plaintiffs claimed for damages sustained in a motor vehicle accident. The driver of the vehicle was killed and the three passengers suffered personal injuries.

The Nova Scotia Supreme Court, Trial Division, held the defendants 80% at fault. The court held the deceased driver 10% at fault and both the driver and passengers 10% contributorily negligent for failing to wear seat belts.

Practice - Topic 650

Parties - Adding plaintiffs - General - Counsel for the plaintiffs at trial sought to have a holding company added as a party plaintiff - All parties proceeded under the mistaken belief that the deceased owned a motor vehicle rather than his company - The Nova Scotia Supreme Court, Trial Division, allowed the motion, the defendant not having been taken by surprise or otherwise prejudiced - See paragraph 2.

Torts - Topic 451

Negligence - Motor vehicles - Speed - Excessive speed - The Nova Scotia Supreme Court, Trial Division, held that although it was probable that the plaintiff driver was travelling at a speed in excess of the posted limit, the vehicle was not travelling at a dangerously excessive speed immediately prior to the accident given the weather, traffic conditions - See paragraphs 15 to 18.

Torts - Topic 505

Negligence - Motor vehicles - Parking or stopping - Marking or warning of parked or stopped vehicles - A trailer separated from a tractor while travelling on a highway at night - The tractor driver turned the vehicle and flicked his headlights from high to low beam to warn oncoming motorists - The Nova Scotia Supreme Court, Trial Division, held that the flicking lights greatly lessened the chances of an oncoming vehicle seeing the obstacle - The court held that although such constituted a serious error in judgment, the defendant's action did not constitute negligence - See paragraphs 25 to 27.

Torts - Topic 486

Negligence - Motor vehicles - Equipment and lights - Trailers - A trailer unit separated from a tractor while driving on a highway at night - The Nova Scotia Supreme Court, Trial Division, held the defendant driver negligent in failing to insure that the fifth wheel assembly was properly secure - See paragraphs 28 to 38, 47 and 48.

Torts - Topic 486

Negligence - Motor vehicle - Equipment and lights - Trailers - A trailer unit separated from a tractor while driving on a highway at night - The Nova Scotia Supreme Court, Trial Division, held the defendant transport company negligent in failing to insure that the fifth wheel assembly was fitted with a safety device - See paragraphs 49 and 50.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - Inference of negligence - A trailer unit separated from a tractor while driving on a highway at night - The plaintiffs, who were following the vehicle, collided with the trailer - The Nova Scotia Supreme Court, Trial Division, stated that even if the evidence had not been so clear to allow the findings of negligence, the court would have held the defendants negligent on the basis of res ipsa loquitur - See paragraph 51.

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - A trailer unit separated from a tractor while proceeding on a highway at night - The tractor driver turned the vehicle and attempted to warn oncoming motorists by flicking his headlights from low to high beam - The plaintiff driver failed to slow and collided with the trailer - The Nova Scotia Supreme Court, Trial Division, held the plaintiff driver 10% at fault in failing to heed the warnings and in not satisfying himself that it was safe to proceed - See paragraphs 55 to 58 and 66.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of passengers - Failure to use safety equipment - The Nova Scotia Supreme Court, Trial Division, held the plaintiff driver and plaintiff passengers 10% contributorily negligent for failing to wear seat belts - See paragraphs 59 to 66.

Damages - Topic 2140

Torts causing death - Deduction from lump sum pecuniary loss of pecuniary advantages resulting from the death - Acceleration of benefits - The Nova Scotia Supreme Court, Trial Division, held that the immediate financial benefit accruing to the deceased's survivors, which resulted directly from the death, were to be considered in establishing the quantum of damages assessed under the Fatal Injuries Act - See paragraph 77.

Damages - Topic 2252

Torts causing death - Calculation of value of particular dependencies - Wife and children dependent upon husband and father - The Nova Scotia Supreme Court, Trial Division, considering the deceased's living habits and his frugality, allocated 25% of the income to the deceased - The court held $25,000 per year would be available to the wife and four children - See paragraph 94.

Damage Awards - Topic 81

Personal injury and death - Fatal accidents - Father and husband earning $33,000 yearly and having a net worth valued at $900,000 - The Nova Scotia Supreme Court, Trial Division, awarded $50,000 to the wife and $10,000 to each of four children under the Fatal Injuries Act - See paragraph 99.

Damages - Topic 2117

Torts causing death - Method of assessment of value of the dependency (lump sum) - Contingencies - The Nova Scotia Supreme Court, Trial Division, considered the contingencies of the wife's remarriage and shorter life span in an assessment of damages for wrongful death of her husband - See paragraph 101.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - The deceased's estate alleged that the loss of the deceased's grandfather's inheritance was a proper head of damages in an action for damages for wrongful death - The Nova Scotia Supreme Court, Trial Division, dismissed the claim because the damages were not reasonably foreseeable - See paragraphs 102 to 108.

Damage Awards - Topic 95

Personal injury and death - Fatal accidents - Special damages - The Nova Scotia Supreme Court, Trial Division, held that a claim for loss of the deceased's clothing as a result of a motor vehicle accident was a valid claim under the Survival of Actions Act - See paragraph 111.

Damage Awards - Topic 150

Personal injury - Multiple injuries - General - 44 year old female - Fractures of left wrist and hand, right wrist, right arm, shoulder, ribs, nose, upper left leg and right ankle - Lung contusions - Right leg 2½ inches shorter than left - 50% disability - High probability of future surgery - The Nova Scotia Supreme Court, Trial Division, assessed $40,000 general damages - See paragraphs 112 to 133.

Damages - Topic 1731

General damages - Deductions for payments or assistance by third parties - Contractually - From employer - Wages - Agreement to repay wages out of compensation - The plaintiff received full payment from her employer while recovering from injuries sustained in a motor vehicle accident, it being understood that if legal action resulted in recovery, the wages would be repaid to the company - The Nova Scotia Supreme Court, Trial Division, accepted the arrangement between the parties and assessed damages for loss of wages without deduction - See paragraph 120.

Damage Awards - Topic 455

Personal injury and death - Special damages awards - Transportation - The Nova Scotia Supreme Court, Trial Division, held that the calculation of transportation based upon the mileage rate paid by the government to its employees was not an acceptable method of computing travel expenses as a special damage claim - See paragraph 134.

Damages - Topic 1284

Losses by third parties - Recoverable losses - Transportation and lodging - The plaintiff's husband claimed for travel costs incurred to visit his wife while in hospital - The Nova Scotia Supreme Court, Trial Division, held that such claim was not an expense which was recoverable by a plaintiff - See paragraph 134.

Damages - Topic 1435

Special damages - Cost of housekeeping services - The plaintiff claimed for housekeeping services provided by her daughter - The Nova Scotia Supreme Court, Trial Division, held that even if the amounts claimed were not actually paid, the defendant could not profit because of a special arrangement which resulted in the plaintiff getting necessary services provided gratuitously - See paragraph 134.

Damage Awards - Topic 56

Personal injuries and death - Body injuries - Chest - Ribs - Male plaintiff suffering one broken rib - Facial and upper body lacerations - The Nova Scotia Supreme Court, Trial Division, assessed $2,500 general damages - See paragraphs 135 and 136.

Damages - Topic 1546

General damages - General damages for personal injury - Discount or capitalization rate and present value of future payments - The Nova Scotia Supreme Court, Trial Division, applied a discount rate of 2½% under rule 31.10 under the Judicature Act, in the calculation of general damages for personal injury - See paragraphs 142 to 148.

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - The Nova Scotia Supreme Court, Trial Division, fixed a deduction rate of 20% for contingencies in the calculation of a damage award for loss of future income - See paragraphs 137 to 141.

Interest - Topic 5136

Interest as damages - Torts - Negligence - General - The Nova Scotia Supreme Court, Trial Division, fixed the rate of prejudgment interest at 12% to run from the date of the accident to the date of judgment - See paragraphs 149 to 152.

Cases Noticed:

Gallant, Gallant & Gallant v. Moffatt Transfer (1977), 21 N.S.R.(2d) 260, folld. [para. 3].

Pontin v. Wood, [1962] 1 Q.B. 609, consd. [para. 3].

E.S. Martin Construction Ltd. v. Penhorn Mall Ltd. et al. (1975), 12 N.S.R.(2d) 331, refd to. [para. 3].

Canadian Pacific Limited v. Avon Aggregates Limited (1977), 19 N.B.R.(2d) 144, appld. [para. 51].

Maddison et al. v. Rushton (1978), 26 N.S.R.(2d) 582; 40 A.P.R. 582, refd to. [para. 62].

Beaver et al. v. Crowe et al. (1977), 18 N.S.R.(2d) 562; 20 A.P.R. 562; 49 D.L.R.(3d) 114, consd. [para. 62].

Fuller v. Atlantic Trust Company, 53 M.P.R. 254, consd. [para. 74].

Workmen's Compensation Board (N.B.) et al. v. Shirley Estate (1979), 30 N.S.R.(2d) 246; 49 A.P.R. 246, refd to. [para. 82].

Joyce v. MacKay (1980), 35 N.S.R.(2d) 361; 62 A.P.R. 361, refd to. [para. 82].

Keizer v. Hanna et al. (1978), 19 N.R. 209; 82 D.L.R.(3d) 449, consd. [para. 85].

Lewis v. Todd et al. (1980), 34 N.R. 1, consd. [para. 92].

Cox v. Takahashi et al., 5 B.C.L.R. 162, consd. [para. 97].

G.T.R. v. Jennings (1883), 13 App. Cas. 800, consd. [para. 97].

Daniels v. Jones, [1961] 1 W.L.R. 1103; [1961] 3 All E.R. 24, consd. [para. 97].

In Re Polemis, [1921] All E.R. 40, refd to. [para. 105].

Overseas Tankship (U.K. Ltd. (Wagonmound) v. Morts Dock and Engineering Co. Ltd., [1961] 1 All E.R. 404, consd. [para. 105].

Andrews et al. v. Grand & Toy Alberta Ltd. et al. (1978), 83 D.L.R.(3d) 452; 19 N.R. 50; 8 A.R. 182, consd. [para. 128].

Naugler v. MacDonnell (1978), 28 N.S.R.(2d) 453; 43 A.P.R. 453, consd. [para. 131].

Godin et al. v. Bourque (1980), 28 N.B.R.(2d) 643; 63 A.P.R. 643, consd. [para. 132].

Weagle v. Brown (1965-69), 1 N.S.R. 565, refd to. [para. 134].

Kirkham v. Boughey, [1958] 2 Q.B. 338, refd to. [para. 134].

Cavanaugh v. MacQuarrie (1980), 35 N.S.R.(2d) 687; 62 A.P.R. 687, refd to. [para. 134].

Teno v. Arnold et al. (1974), 55 D.L.R.(2d) 57; 19 N.R. 1 (S.C.C.), refd to. [para. 134].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., 83 D.L.R.(2d) 480; 19 N.R. 552, refd to. [para. 147].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 15.01 [para. 2].

Fatal Injuries Act, R.S.N.S. 1967, c. 100, sect. 4 [para. 68].

Judicature Act, S.N.S. 1972, c. 2 [paras. 144, 149].

Authors and Works Noticed:

Charlesworth on Negligence (6th Ed.), pp. 1352 [para. 75]; 1362 [para. 76].

Fleming, The Law of Torts (3rd Ed.), p. 277 [para. 51].

Linden, Canadian Negligence Law (1972), p. 262 [para. 107].

Counsel:

R. Peter Muttart, for the plaintiffs, Estate of Gordon Vernon Shaw, et al.;

David A. Miller, for the plaintiffs, William Robert Brooks, et al.;

John M. Davison and David B. Ritcey, for the defendants.

This case was heard before RICHARD, J., of the Nova Scotia Supreme Court, Trial Division, at Kentville, Nova Scotia, on June 12, 13, 16, 17 and 18, 1980, and in Halifax, Nova Scotia, on October 6, 7, 8, 9, 10, 1980, and January 15, 16, 21, 1981, and March 11, 1981.

The judgment of RICHARD, J. was delivered on April 7, 1981.