Sinclair v. Dines, 2005 NBCA 15

• Judge: Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 28, 2004
• Jurisdiction: New Brunswick
• Citations: 2005 NBCA 15;(2005), 279 N.B.R.(2d) 227 (CA)

Sinclair v. Dines (2005), 279 N.B.R.(2d) 227 (CA);

    279 R.N.-B.(2e) 227; 732 A.P.R. 227

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2005] N.B.R.(2d) TBEd. FE.014

Sherri Sinclair (appellant) v. Jason Dines (respondent)

(160/03/CA; 2005 NBCA 15)

Indexed As: Sinclair v. Dines

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.

February 3, 2005.

Summary:

The 24 year old plaintiff suffered moderate soft tissue injuries to her neck, shoulder and lower back in a 1997 motor vehicle accident. She could not engage in heavy lifting and had developed a chronic pain syndrome. Liability for the accident was admitted.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2003] N.B.R.(2d) (Supp.) No. 55, awarded the plaintiff $35,000 nonpecuniary general damages, $52,865.27 for loss of pretrial income and $27,874 for the future cost of medication and an exercise program. The court dismissed the plaintiff's claims for pecuniary general damages for loss of earn­ing and housekeeping capacity. The plaintiff appealed from the failure to award pecuniary general damages for loss of earning and housekeeping capacity. She also argued that the court erred in deducting $26,000 from her pretrial loss of income for no-fault week­ly indemnity benefits when she had only received no-fault benefits of $22,670.

The New Brunswick Court of Appeal held that the trial judge did not err in dismissing the plaintiff's claims for pecuniary general damages for loss of earning and housekeep­ing capacity. The court allowed the appeal only to the extent of correcting a slip by the trial judge where he deducted $3,330 from the plaintiff's past loss of income for no-fault benefits that she had not received.

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of house­keeping capacity - The 24 year old plain­tiff suffered moderate soft tissue injuries in a 1997 motor vehicle accident - She could not engage in heavy lifting and also devel­oped a chronic pain syndrome - The plain­tiff appealed from the trial judge's dis­missal of her claim for pecuniary general damages for loss of housekeeping capacity - The New Brunswick Court of Appeal dismissed the appeal - The trial judge refused to award pecuniary general dam­ages for loss of housekeeping capacity because, on his view of the evidence, the plaintiff was not disabled by any accident-related injury or condition from performing the housekeeping services that underlay her claim - He was convinced, however, that her inability to engage in heavy lifting would lengthen the time needed to perform some of those services - Accordingly, he fashioned an award for non-pecuniary general damages that provided some com­pensation for that extra blow to the plain­tiff's enjoyment of life - In proceeding as he did, the trial judge did not commit any reversible error - See paragraphs 19 to 25.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The 24 year old plaintiff suf­fered moderate soft tissue injuries in a 1997 motor vehicle accident - She also developed a chronic pain syndrome - At the time of the accident, the plaintiff was a university student who worked part-time as a waitress/bartender - At the time of trial in 2003, she had not returned to gain­ful employment nor resumed her university studies - The trial judge found that the plaintiff could not engage in heavy lifting and could no longer work as a wai­tress/bartender - However, the trial judge also found that the plaintiff's pre-accident long term plans did not include work as a waitress/bartender and that she had planned to work as a counsellor or analyst after completing university - The trial judge further found that by the time of trial, the plaintiff was capable of working full-time as a counsellor or analyst - The trial judge therefore dismissed the plaintiff's claim for pecuniary general damages for loss of earning capacity because her injuries did not prevent her from performing the type of work she had intended to engage in prior to the accident - The New Brunswick Court of Appeal held that the trial judge did not err in not awarding damages for loss of earning capacity - The plaintiff's failure to complete her university studies prior to trial was not reasonably at­tributable to any accident related injury or condition - See paragraphs 13 to 18.

Cases Noticed:

Cleary v. McCluskey (2002), 252 N.B.R.(2d) 10; 658 A.P.R. 10; 2002 NBCA 45, refd to. [para. 14].

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66; 681 A.P.R. 66; 2003 NBCA 42, refd to. [para. 14].

O'Donnell v. O'Blenis (2004), 269 N.B.R.(2d) 273; 707 A.P.R. 273; 2004 NBCA 23, refd to. [para. 14].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161, refd to. [para. 14].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 18].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 18].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247; 2000 NBCA 18, refd to. [para. 20].

Bertin v. Kristoffersen et al. (2001), 244 N.B.R.(2d) 315; 634 A.P.R. 315; 2001 NBCA 118, refd to. [para. 20].

Naylor Group Inc. v. Ellis-Don Construc­tion Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341, refd to. [para. 28].

Comeau v. Saint John Regional Hospital et al. (2001), 244 N.B.R.(2d) 201; 634 A.P.R. 201; 2001 NBCA 113 (C.A.), refd to. [para. 28].

Belyea v. Hammond (2000), 231 N.B.R.(2d) 305; 597 A.P.R. 305; 2000 NBCA 41, refd to. [para. 29].

Jones v. Constable et al. (2003), 257 N.B.R.(2d) 90; 674 A.P.R. 90; 2003 NBCA 19, refd to. [para. 29].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saun­ders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 146 to 149 [para. 20]; 183 to 187 [para. 21]; 327 [para. 20].

Counsel:

René J. Basque, for the appellant;

Richard Costello, for the respondent.

This appeal was heard on October 28, 2004, before Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Dra­peau, C.J.N.B., on February 3, 2005.