Trusz v. Witzke, (1990) 111 A.R. 349 (CA)

• Judge: Lieberman, Haddad and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 23, 1990
• Citations: (1990), 111 A.R. 349 (CA)

Trusz v. Witzke (1990), 111 A.R. 349 (CA)

MLB headnote and full text

Tadeusz Trusz and Lydia Trusz (appellants/plaintiffs) v. William Witzke (respondent/defendant)

(Appeal #8903 0697 AC)

Indexed As: Trusz v. Witzke

Alberta Court of Appeal

Lieberman, Haddad and Kerans, JJ.A.

November 23, 1990.

Summary:

The plaintiff was injured in an automobile accident. The Alberta Court of Queen's Bench, in a decision unreported in this series of reports, assessed damages. The plaintiff appealed.

The Alberta Court of Appeal ordered a new trial.

Practice - Topic 8845

Appeals - Loss of right of appeal - Acceptance of benefits of judgment at trial - An accident victim was awarded damages for nonpecuniary loss - He appealed the trial judge's ruling that some of his disabilities were not accident-related and the refusal to award damages for future loss of earnings - The Alberta Court of Appeal held that he was entitled to appeal because the equitable doctrines of estoppel and election did not apply - See paragraphs 33 to 38.

Practice - Topic 9226

Appeals - New trials - Admissible evidence rejected - A physiotherapist treated the plaintiff immediately after an automobile accident - She would testify about the connection between the accident and the plaintiff's physical complaints - The plaintiff informed the court that he had no more witnesses to call because he believed, mistakenly, that the physiotherapist was not available for the trial - When he learned she was available, he attempted to call her as a witness - The trial judge refused - The Alberta Court of Appeal ordered a new trial - The plaintiff was denied a fair hearing by the refusal to hear crucial evidence without sufficient reason - See paragraphs 12 to 23.

Practice - Topic 9257

Appeals - Judgments by appeal court - Assessment of damages - An accident victim was permanently disabled and lost his job - He discovered a talent for woodcarving and began a potentially successful career as an artist and teacher - Estimate of his earnings subject to many contingencies - The trial judge did not allow damages for future loss of earnings before the trial - The Alberta Court of Appeal ordered a new trial - Reassessment should consider the connection between the career change and the accident and the importance of contingencies on the plaintiff's future loss of earnings -See paragraphs 24 to 31.

Cases Noticed:

Lissenden v. C.A.V. Bosch Ltd., [1940] A.C. 412 (H.L.), refd to. [para. 33].

Kingpin Investments Ltd. v. Melton Real Estate Ltd. (1978), 9 A.R. 605; 6 Alta. L.R.(2d) 193, appld. [para. 33].

Mengel's Will Trusts, Re, [1962] Ch. 791, refd to. [para. 35].

Authors and Works Noticed:

Pettit, Equity and the Law of Trusts (5th Ed. 1984), p. 619ff [para. 35].

Counsel:

J.R. Nickerson and L.R. Hazlett, for the appellant;

D.W. Hagg, for the respondent.

This appeal was heard before Lieberman, Haddad and Kerans, JJ.A., of the Alberta Court of Appeal.

On November 23, 1990, Kerans, J.A., delivered the following judgment for the Court of Appeal.