Slaney v. Ellis and Hickman Motors Ltd., (1993) 108 Nfld. & P.E.I.R. 181 (NFTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 25, 1992
• Jurisdiction: Newfoundland and Labrador
• Citations: (1993), 108 Nfld. & P.E.I.R. 181 (NFTD)

Slaney v. Ellis (1993), 108 Nfld. & P.E.I.R. 181 (NFTD);

    339 A.P.R. 181

MLB headnote and full text

William Slaney (plaintiff) v. Fraser Ellis (first defendant) and Hickman Motors Limited (second defendant)

(1986 St. J. No. 389)

Indexed As: Slaney v. Ellis and Hickman Motors Ltd.

Newfoundland Supreme Court

Trial Division

Adams, J.

April 30, 1993.

Summary:

The plaintiff sued the defendants in negli­gence for damages for personal injuries arising out of a motor vehicle collision. The defendants' liability was admitted.

The Newfoundland Supreme Court, Trial Division, assessed the plaintiff's damages for total disability accordingly.

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Sprains and tears - [See Damage Awards - Topic 178 ].

Damage Awards - Topic 150

Injury and death - Multiple injuries - General - [See Damage Awards - Topic 178 ].

Damage Awards - Topic 178

Injury and death - Neck injuries - Whip­lash - In 1984, when he was 27, the plaintiff suffered injury to his cervical and lumbar spine and his knee and crushing of his foot - Not hospitalized - Cervical instability was the worst injury and was worsening, with ultimate prospect of fusion surgery - Developed chronic pain syn­drome with resulting mild depression - This, with spelling and math learning disability, an attention deficit disorder and previous lack of ambition to pursue his plumbing trade, resulted in minimal pros­pect of return to employment after eight years absence - Current inability to do other than very light labour - The New­foundland Supreme Court, Trial Division, considered him totally disabled and awarded him $75,000 nonpecuniary gen­eral damages for pain, suffering and loss of amenities, plus damages for past and future loss of income - See paragraphs 121 to 125.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The plaintiff man suffered soft tissue spinal injuries and developed chronic pain syndrome and at trial eight years later claimed to be totally disabled - The defendants pleaded that he failed to mitigate his damages by not following medical advice to exercise and control his weight - The Newfoundland Supreme Court, Trial Division, noting that he was "quite slim" at trial, refused to find that he had failed to mitigate, where he was prac­tically totally disabled and his conduct lacked any element of unreasonableness or impropriety - See paragraphs 78 to 81.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - Relocation - The Newfoundland Supreme Court, Trial Division, stated that a "plaintiff is not obliged to relocate to another area, where there may be greater opportunities of employment for a person of his capability" - In any event, a plaintiff, who is practically totally dis­abled, need not relocate - See paragraphs 74 to 77.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - Retraining - The Newfoundland Supreme Court, Trial Division, held that a totally disabled person need not retrain - See paragraphs 79, 100.

Damages - Topic 1413

Special damages - Loss of income of self-employed, under-employed or unemployed person - [See Damages - Topic 1550.1 ].

Damages - Topic 1550.1

General damages for personal injuries - Pretrial loss of wages or earnings - The plaintiff man was injured and developed chronic pain syndrome with resulting total disability - He had trained as a plumber, but had never been steadily or regularly employed and showed little ambition - The Newfoundland Supreme Court, Trial Division, held that his damages for pretrial loss of income should be treated as general damages and need not be specifi­cally pleaded or strictly proved - The court assessed his damages for loss of income on the assumed basis of 20 weeks work at minimum wage and 30 weeks unemploy­ment - See paragraphs 101 to 108.

Damages - Topic 1630

General damages - Considerations in assessing general damages - Loss of income - Effect of unreported income - The plaintiff man was injured and devel­oped chronic pain syndrome with resulting total disability - He had trained as a plumber, but had never been steadily or regularly employed and showed little ambition - He worked at odd jobs for small pay, which he did not report for income tax or unemployment purposes - The Newfoundland Supreme Court, Trial Division, nevertheless considered the unre­ported income in assessing damages for loss of income - See paragraphs 117 to 120.

Damages - Topic 1746

Deductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits - The defendants submitted that the plaintiff should not recover damages for drugs and loss of personal property, such as spec­tacles, because the plaintiff could have recovered from his Section B automobile insurance coverage - The Newfoundland Supreme Court, Trial Division, refused to deduct the amounts from damages - See paragraphs 90, 94 to 95.

Equity - Topic 1483

Equitable principles affecting relief - Clean hands doctrine - Prohibition against profiting from own wrong - [See Dam­ages - Topic 1630 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Inference from failure to call available evidence - The plaintiff saw various doc­tors after his injury, but called as witnesses only the latter two - The previous ones were either not found or not available to be called and their reports did not disagree with the medical witnesses who were called - The Newfoundland Supreme Court, Trial Division, refused to draw an inference against the plaintiff for failure to call the previously-consulted doctors - See paragraphs 82 to 89.

Interest - Topic 5137

Interest as damages (prejudgment inter­est) - Torts - Negligence - Personal injuries - [See Statutes - Topic 6144 ].

Statutes - Topic 6144

Operation and effect - Amendments - Application to pending proceedings - The plaintiff's cause of action arose six days before the Judgment Interest Act was proclaimed - Section 10 provided that the Act did not apply to a cause of action arising before the Act came into force, but before trial the Act was amended to delete the limitation of application - The New­foundland Supreme Court, Trial Division, held that the elimination of the limitation was not retroactive and the plaintiff was not entitled to prejudgment interest - See paragraph 109.

Cases Noticed:

Pollard v. Budden and Newfoundland (1989), 75 Nfld. & P.E.I.R. 44; 234 A.P.R. 44 (Nfld. T.D.), appld. [para. 74].

MacDougall v. Edmunds (1987), 80 N.S.R.(2d) 161; 200 A.P.R. 161 (T.D.), dist. [paras. 74, 94].

Blanchard v. Canadian Indemnity Co. (1990), 82 Nfld. & P.E.I.R. 37; 257 A.P.R. 37 (P.E.I.C.A.), dist. [para. 75].

Monosingh v. Insurance Corp. of British Columbia, [1992] B.C.J. No. 702 (S.C.), dist. [para. 78].

Klyne v. Gossen (1986), 49 Sask.R. 75 (Q.B.), dist. [para. 78].

Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15, dist. [para. 82].

Dole v. McEwan (1987), 80 N.B.R.(2d) 12; 202 A.P.R. 12 (Q.B.), dist. [para. 78]; refd to. [para. 83].

Herard v. Vaughan and Langis Food Ltd. (1981), 27 A.R. 440 (Q.B.), refd to. [para. 83].

MacLeod v. Via Rail Canada Inc. (1988), 91 N.B.R.(2d) 91; 232 A.P.R. 91 (Q.B.), refd to. [para. 83].

Crawley v. Sears et al. (1982), 37 Nfld. & P.E.I.R. 228; 104 A.P.R. 228 (Nfld. T.D.), dist. [para. 101].

Dobbin v. Alexander Enterprises Ltd. and Alexander (1987), 63 Nfld. & P.E.I.R. 1; 194 A.P.R. 1 (Nfld. C.A.), appld. [para. 101].

Eason v. Dollimont (1990), 83 Nfld. & P.E.I.R. 163; 260 A.P.R. 163 (Nfld. C.A.), refd to. [para. 103].

Woodman v. Masters and Stickel (1988), 71 Nfld. & P.E.I.R. 285; 220 A.P.R. 285 (Nfld. T.D.), refd to. [para. 103].

Grivicic v. Doyle, [1991] 4 W.W.R. 661; 121 A.R. 137 (Q.B.), dist. [para. 119].

Manzer v. Lines and Milner Estate (1990), 98 N.S.R.(2d) 213; 263 A.P.R. 213 (T.D.), dist. [para. 119].

Frenette v. Audet (1988), 89 N.B.R.(2d) 306; 226 A.P.R. 306 (C.A.), dist. [para. 119].

Squires v. Lang (1992), 94 Nfld. & P.E.I.R. 108; 298 A.P.R. 108 (Nfld. T.D.), consd. [para. 120].

Iannone v. Hoogenraad (1990), 50 B.C.L.R.(2d) 390 (S.C.), consd. [para. 120].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91; 87 D.L.R.(4th) 248 (C.A.), consd. [para. 120].

Dennis v. Gallant (1991), 88 Nfld. & P.E.I.R. 344; 274 A.P.R. 344 (P.E.I.C.A.), consd. [para. 121].

Graham et al. v. Rourke (1988), 43 C.C.L.T. 119 (H.C.), varied 40 O.A.C. 301 (C.A.), consd. [para. 121].

Mason (Drinkwalter) v. Mason et al. (1988), 31 B.C.L.R.(2d) 92 (S.C.), consd. [para. 121].

Furlong v. Piercey and Piercey (1984), 48 Nfld. & P.E.I.R. 4; 142 A.P.R. 4 (Nfld. Dist. Ct.), consd. [para. 121].

Foley v. Newfoundland Light and Power Co. and Slaney (1984), 51 Nfld. & P.E.I.R. 347; 150 A.P.R. 347 (Nfld. T.D.), consd. [para. 121].

Kennedy, Peyton, Mills et al. v. Bouzane (1985), 55 Nfld. & P.E.I.R. 275; 162 A.P.R. 275 (Nfld. Dist. Ct.), consd. [para. 121].

Mullaly v. Skiffington (1990), 87 Nfld. & P.E.I.R. 113; 271 A.P.R. 113 (Nfld. T.D.), consd. [para. 121].

Hillyard v. Pittman (1991), 90 Nfld. & P.E.I.R. 217; 280 A.P.R. 217 (Nfld. T.D.), consd. [para. 122].

White v. Fudge (1990), 87 Nfld. & P.E.I.R. 246; 271 A.P.R. 246 (Nfld. T.D.), consd. [para. 122].

Brazil v. Rowsell (1990), 86 Nfld. & P.E.I.R. 335; 268 A.P.R. 335 (Nfld. T.D.), consd. [para. 122].

Bridle v. Pearce (1986), 61 Nfld. & P.E.I.R. 80; 185 A.P.R. 80 (Nfld. T.D.), consd. [para. 122].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225; [1978] 1 W.W.R. 557, appld. [para. 123].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, appld. [para. 123].

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, appld. [para. 123].

Statutes Noticed:

Automobile Insurance Act, R.S.N. 1990, c. A-22, sect. 35 [para. 94].

Judgment Interest Act, S.N. 1983, c. J-2, sect. 10 [para. 109].

Counsel:

Jean Dawe, for the plaintiff;

Geoffrey Brown, for the defendant.

This case was heard on June 25, 1992, at Saint John's, Newfoundland, by Adams, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following deci­sion on April 30, 1993.