Smith v. Agnew, [2003] N.B.R.(2d) (Supp.) No. 56 (TD)

• Judge: Garnett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 12, 2003
• Jurisdiction: New Brunswick
• Citations: [2003] N.B.R.(2d) (Supp.) No. 56 (TD);2003 NBQB 394

Smith v. Agnew, [2003] N.B.R.(2d) (Supp.) No. 56 (TD)

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Temp. Cite: [2003] N.B.R.(2d) (Supp.) TBEd. NO.011

Renvoi temp.: [2003] N.B.R.(2d) (Supp.) TBEd. NO.011

Douglas Smith and Margaret Smith (plaintiffs) v. Michael Agnew and Cedric Agnew (defendants)

Douglas Smith and Margaret Smith (plaintiffs) v. The Wawanesa Mutual Insurance Company (defendant)

(F/C/62/99; F/C/131/00; 2003 NBQB 394; 2003 NBBR 394)

Indexed As: Smith v. Agnew

Répertorié: Smith v. Agnew

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Garnett, J.

November 12, 2003.

Summary:

Résumé:

The plaintiff was injured in a motor vehicle accident. The defendant admitted liability. The issue was the amount of dam­ages.

The New Brunswick Court of Queen's Bench, Trial Division, awarded $50,000 in general damages and $131,511 in past lost income.

Damage Awards - Topic 179

Injury and death - Neck injuries - Soft tissue injuries - The plaintiff was injured in a motor vehicle accident - The defendant admitted liability - The issue was the amount of damages - The plaintiff argued that his injuries were so serious, he would be unable to work for the rest of his life - The defendant argued that the plaintiff did not follow his physicians' advice, and therefore failed to mitigate his damages - The New Brunswick Court of Queen's Bench, Trial Division, held that the plain­tiff suffered a moderately severe soft tissue injury with headaches - However, the court also held that the plaintiff had not followed his doctors' advice and by doing so, sig­nifi­cantly retarded his recovery - The court awarded $50,000 in general damages - See paragraphs 61 to 64.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - The plaintiff was injured in a motor vehicle accident in 1997 - In 1999, the plaintiff left his engineering job in Saudi Arabia due to his injuries - The plaintiff claimed entitlement to lost income from 1999 to 2002, the date of trial - During that time, the plaintiff dis­continued physical therapy and recondi­tioning and did not follow the advice of his physicians to increase his physical activity - The New Brunswick Court of Queen's Bench, Trial Division, awarded past loss of income for 18 months - The court held that 18 months was a reasonable period within which the plaintiff could have sufficiently recovered to return to work had he made a significant effort to improve his health - Calculated over 18 months, his past loss of income was $131,511 - See paragraphs 65 to 69.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - [See Damage Awards - Topic 179 and Damage Awards - Topic 492.1 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 492.1 ].

Évaluation des dommages-intérêts - Cote 179

Blessures et décès - Blessures au cou - Lésions des tissus mous - [Voir Damage Awards - Topic 179 ].

Évaluation des dommages-intérêts - Cote 492.1

Blessure et décès - Évaluation des dommages-intérêts généraux - Perte de revenus antérieure au procès - [Voir Dam­age Awards - Topic 492.1 ].

Dommages-intérêts - Cote 1011

Limitation - Délits civils - Préjudice corpo­rel - Traitement - [Voir Damages - Topic 1011 ].

Dommages-intérêts - Cote 1550.1

Dommages-intérêts généraux - Dommages-intérêts généraux pour préjudice corporel - Perte de salaire ou de gains subie avant le procès - [Voir Damages - Topic 1550.1 ].

Cases Noticed:

Daley v. Gauthier (1999), 222 N.B.R.(2d) 177; 570 A.P.R. 177 (T.D.), refd to. [para. 64].

Debly v. Bowland et al. (2000), 232 N.B.R.(2d) 378; 598 A.P.R. 378 (T.D.), refd to. [para. 64].

Counsel:

George McAllister, for the plaintiffs;

Richard B. Costello, Q.C., for the defend­ants Agnew;

Brenda J. Lutz, Q.C., for the defendant Wawanesa Mutual Insurance.

This action was heard on March 18 - 22, 2002, July 8 - 12, 2002, December 10 - 13, 2002 and January 27 - 30, 2003 by Garnett, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on November 12, 2003.