Sorochan v. Bouchier et al., 2015 ABCA 212

• Judge: Berger, Bielby and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 22, 2015
• Citations: 2015 ABCA 212;(2015), 602 A.R. 148

Sorochan v. Bouchier (2015), 602 A.R. 148; 647 W.A.C. 148 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.105

Elaine Sorochan (appellant/plaintiff) v. Vernon Wayne Bouchier and Direct Integrated Transporation Inc. (respondents/defendants)

(1403-0040-AC; 2015 ABCA 212)

Indexed As: Sorochan v. Bouchier et al.

Alberta Court of Appeal

Berger, Bielby and O'Ferrall, JJ.A.

June 22, 2015.

Summary:

The 56 year old plaintiff was injured in a 2005 motor vehicle accident. The defendants admitted liability. At issue was the assessment of general damages, damages for loss of income and pension benefits, damages for the loss housekeeping services, and special damages.

The Alberta Court of Queen's Bench, in a judgment reported (2014), 581 A.R. 66, assessed $75,000 general damages for nonpecuniary loss, damages for loss of income and pension benefits only to July 2007 (when the plaintiff voluntarily retired), $2,000 special damages, $6,400 for loss of housekeeping services to the date of trial, and $10,000 for future loss of housekeeping services. The plaintiff appealed, submitting that the trial judge erred in attributing one-half of her current partial disability to her pre-existing condition.

The Alberta Court of Appeal allowed the appeal in part, stating that "once it is proven that a tortfeasor's negligence 'triggered' or materially contributed to a plaintiff's injury, there can be no reduction of what would otherwise be an appropriate award of damages to reflect the existence of non-tortious background causes. ... The presence of non-tortious contributing causes of the [plaintiff's] injuries (i.e., her pre-existing condition) does not reduce the extent of the [defendants'] liability." The court affirmed the general damage award, but increased the damage awards for past and future loss of housekeeping loss and awarded $50,820 for loss of future income and $15,000 for loss of pension benefits.

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Sprains, tears and soft tissue injuries - In 2005, the 56 year old plaintiff was injured in a rear-end motor vehicle collision - Her primary injury was lower back pain, which continued to the date of trial - The plaintiff was currently on a wait list for back surgery, as conservative treatment with physiotherapy and medication provided no long-lasting relief - The plaintiff testified that she intended to retire in 2013 at age 65, but she chose to retire in 2007 because she could no longer tolerate the pain - The employer did not request retirement and there was no medical advice that she retire - There was credible conflicting evidence that the plaintiff always intended to retire in 2007 at age 59 - The plaintiff had an asymptomatic pre-existing condition (degenerative stenosis of spine and scoliosis) - The plaintiff had a 21% permanent partial disability, which the trial judge attributed equally to the defendants' negligence and the plaintiff's pre-existing condition - The trial judge assessed $75,000 general damages for nonpecuniary loss - Damages were awarded for lost income only until the plaintiff's voluntary retirement in 2007, as her back pain was not the cause of her early retirement - The court awarded $6,400 for loss of housekeeping services to the date of trial, and $10,000 for future loss of housekeeping services - The Alberta Court of Appeal allowed the plaintiff's appeal in part, stating that "once it is proven that a tortfeasor's negligence 'triggered' or materially contributed to a plaintiff's injury, there can be no reduction of what would otherwise be an appropriate award of damages to reflect the existence of non-tortious background causes. ... The presence of non-tortious contributing causes of the [plaintiff's] injuries (i.e., her pre-existing condition) does not reduce the extent of the [defendants'] liability." - The error did not affect the general damage award, which was affirmed - However, the damage awards for past and future loss of housekeeping loss, which were affected by the error, were increased - The court awarded $50,820 for loss of future income between 2007 and 2013 (age 65), as the trial judge erred in finding that the plaintiff voluntarily retired at age 59 notwithstanding her injuries - After applying negative contingencies, the court was satisfied that the plaintiff would have worked until age 62.5 - She was awarded $50,820 for lost future income between the ages of 59 and 62.5, plus $15,000 for the estimated loss of pension benefits.

Damage Awards - Topic 453

Injury and death - Special damage awards - Loss of wages - [See Damage Awards - Topic 71 ].

Damage Awards - Topic 488

Injury and death - General damage awards - Costs of housekeeping services and child care - [See Damage Awards - Topic 71 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 71 ].

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage - "Thin skull" or "crumbling skull" - [See Damage Awards - Topic 71 ].

Damages - Topic 1410

Special damages - Loss of wages/income - General - [See Damage Awards - Topic 71 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, 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; 577; 83 D.L.R.(3d) 452, refd to. [para. 22].

Daly v. General Steam Navigation Co., [1980] 3 All E.R. 696, refd to. [para. 28].

Benstead et al. v. Murphy et al. (1994), 157 A.R. 198; 77 W.A.C. 198; 23 Alta. L.R.(3d) 251 (C.A.), refd to. [para. 28].

Counsel:

R.C. Murray, for the appellant;

W.A. Hanson and J.E. Halloran, for the respondents.

This appeal was heard on November 28, 2014, before Berger, Bielby and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On June 22, 2015, the following memorandum of judgment was delivered by the Court.