Vespa v. Dynes et al., 2002 ABQB 25

• Judge: Chrumka, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 15, 2001
• Citations: 2002 ABQB 25;(2002), 314 A.R. 1 (QB)

Vespa v. Dynes (2002), 314 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.113

Carlo Vespa and Sylvia Vespa (plaintiffs) v. Philip John Dynes, Timothy Dynes, 563080 Alberta Ltd., 563080 Alberta Ltd. operating under the firm name and style of The Body Shop, John Doe, the City of Calgary, Jack Doe Guardian Insurance Company of Canada (defendants)

(Action No. 9501 17058; 2002 ABQB 25)

Indexed As: Vespa v. Dynes et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Chrumka, J.

May 2, 2002.

Summary:

The plaintiff spouses sued for damages arising from multiple and life threatening injuries suffered by the husband in a motor vehicle accident. Liability was admitted.

The Alberta Court of Queen's Bench assessed the plaintiffs' damages and awarded judgment accordingly.

Damage Awards - Topic 52.1

Injury and death - Body injuries - Arteries - As a result of a motor vehicle accident, the plaintiff suffered multiple and life threatening injuries summarized as: a lengthy laceration of the entire dome of the right lobe of the liver which required two laparotamies; a laceration of the tongue; multiple facial lacerations; multiple knee abrasions; a fractured right wrist and right little finger; a transection of the descending thoracic aorta which required implantation of a dacron graft; and a disruption of the vocal chords as a result of the surgeries - The plaintiff also developed depression and post traumatic stress disorder - The Alberta Court of Queen's Bench awarded the plaintiff $100,000 general nonpecuniary damages - See paragraphs 235 to 250.

Damage Awards - Topic 53

Injury and death - Body injuries - Liver - [See Damage Awards - Topic 52.1 ].

Damage Awards - Topic 150

Injury and death - Multiple injuries - General - [See Damage Awards - Topic 52.1 ].

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 52.1 ].

Damage Awards - Topic 215

Injury and death - Psychological injuries - Post traumatic stress disorder - [See Damage Awards - Topic 52.1 ].

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - The plaintiff suffered serious life threatening injuries in a 1995 motor vehicle accident - The Alberta Court of Queen's Bench awarded the plaintiff's wife $20,000 for loss of consortium - While the spouses continued to live together, they were not enjoying the quality of life in their marriage which predated the accident and which they enjoyed in 1996 and into 1997 - The court was satisfied that in early 1998 the wife began losing the society and comfort of her husband and that by the trial the loss was for all practical purposes complete - The losses suffered by the wife were directly connected to the motor vehicle accident and primarily to the post traumatic stress disorder and depression suffered by her husband as a result of the accident - See paragraphs 281 to 293.

Damages - Topic 1006

Mitigation - Excuses for failure to mitigate - [See Damages - Topic 1011 ].

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The plaintiff suffered serious life threatening injuries in a motor vehicle accident - He also developed depression and post traumatic stress disorder as a result of the accident - The defendants argued that the plaintiff failed to mitigate his damages by, inter alia, not following up with recommended counselling and antidepressant medication - The Alberta Court of Queen's Bench did not find a failure to mitigate - The court stated that if there was doubt that a plaintiff was capable of making a rational decision or there was an indication that his incapacity to do so may have been a consequence of the trauma induced by the accident, it would be unjust to cut off the plaintiff's recovery for failure to mitigate his damages through a rational decision as to treatment - The focus in each case would be on the plaintiff's capacity to make a reasonable choice - In this case, because of the post traumatic stress disorder and depression caused by the accident, the plaintiff was not capable of making choices as a mentally healthy person - See paragraphs 299 to 311.

Damages - Topic 1261

Losses by third parties - Loss of consortium - Loss of society, companionship and comfort - [See Damage Awards - Topic 585 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The plaintiff commission salesman suffered serious life threatening injuries in a motor vehicle accident - As a result of the injuries, the plaintiff now lacked stamina and he suffered from depression and post traumatic stress disorder - The Alberta Court of Queen's Bench was satisfied that the plaintiff had suffered a loss of earning capacity because of the accident - The court found the plaintiff's loss of income to be $10,000 annually - Using a multiplier of 17.31, the court calculated the future loss of income to be $173,100 - See paragraphs 264 to 270.

Damages - Topic 1550.1

General damages - General damages for personal injury - Pretrial loss of wages or earnings - The plaintiff commission salesman suffered serious life threatening injuries in a 1995 motor vehicle accident - The plaintiff increased his earnings substantially for a period after the accident but he then regressed to a substandard performance - The Alberta Court of Queen's Bench stated that rather than relying on precise mathematical calculations, it had to take a more general approach in determining post accident pretrial loss of earnings -The evidence was that the plaintiff's condition was deteriorating as of 1998 onward and that he was suffering residual deficits from the accident - The court was satisfied that the plaintiff suffered a loss of earning capacity, which might not have been reflected in his 1997 earnings, but was reflected in subsequent years - The court fixed the plaintiff's pretrial loss of income at $35,000 - See paragraphs 261 to 263.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The plaintiff spouses sued for damages arising from injuries suffered by the husband - An issue arose with respect to whether an adverse inference should be drawn because of the plaintiffs' failure to call two doctors (Dr. Bharadwaj and Dr. Anderson) as witnesses - The Alberta Court of Queen's Bench was not satisfied that the plaintiffs had given a reasonable explanation as to why Dr. Bharadwaj, a material witness, was not called to testify -Accordingly, the court drew the inference that his evidence would have been damaging to the plaintiffs' case - The court drew no such adverse inference from the absence of Dr. Anderson, as he was not "material" in the same sense - See paragraphs 229 to 234.

Evidence - Topic 4025

Witnesses - General - Credibility - Collusion or complicity - The plaintiff spouses sued for damages arising from injuries suffered by the husband - An issue arose with respect to whether there was collaboration of the plaintiffs' witnesses at two meetings; (1) a three hour dinner meeting of expert witnesses in the plaintiffs' counsel's office; and (2) a "debriefing" meeting of the employees of the plaintiff husband's employer - The Alberta Court of Queen's Bench held that the evidence of the purpose of the meeting in counsel's office and what was discussed did not compel it to the view that what transpired was improper or influenced any expert to tailor his or her report or evidence - Nor, did the "debriefing" meeting result in any of the witnesses being partial to the plaintiffs - While it was preferable that prospective witnesses not be "debriefed" at a group meeting, the court was satisfied that the meeting had no effect on the witnesses' testimony - See paragraphs 225 to 228.

Evidence - Topic 4800

Witnesses - Examination - Separation or exclusion of witnesses - General - [See Practice - Topic 5287 ].

Practice - Topic 5287

Trials - General - Evidence - Order of witnesses - The plaintiffs, husband and wife, sued for damages arising from injuries suffered by the husband - Seven witnesses, including expert witnesses, were called by the plaintiffs' counsel and testified prior to the plaintiffs testifying - During their testimony, the plaintiff husband excluded himself from the courtroom, but his wife remained - The defendants submitted that the possibility of bias, fabrication and tailoring of evidence had to be weighed when considering the plaintiffs' evidence - They also submitted that the plaintiff wife remaining in the courtroom while the seven witnesses testified interfered with the judicial conduct of the trial -The Alberta Court of Queen's Bench held that the order in which the witnesses testified did not interfere with the judicial conduct of the trial or affect the plaintiffs' credibility - The court was not persuaded that the plaintiffs tailored their testimony to conform with the witnesses who testified before them - Additionally, the plaintiffs' would have had access to the reports submitted by each of the expert witnesses called - See paragraphs 223 to 224.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment (incl. seat belts) - [See Torts - Topic 6630 ].

Torts - Topic 6630

Defences - Contributory negligence - Particular cases - Failure to use safety equipment (incl. seat belts) - The plaintiff sued for damages arising from multiple and life threatening injuries suffered in a motor vehicle accident - The defendants submitted that the plaintiff was contributorily negligent in failing to wear a seat belt - There was no direct evidence as to whether the plaintiff was or was not wearing a seat belt - The Alberta Court of Queen's Bench held that having regard to the violence of the collision and the plaintiff's having been pinned in his motor vehicle by the steering wheel, it was not satisfied that it had been proved on a balance of probabilities that the plaintiff's injuries would have been prevented or reduced had he been wearing a seat belt - Nor was the court satisfied on a balance of probabilities that the plaintiff was not wearing a seat belt - Accordingly, the plaintiff was not contributorily negligent - See paragraphs 294 to 298.

Cases Noticed:

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 203].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480, refd to. [para. 203].

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. 272, refd to. [para. 203].

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, refd to. [para. 209].

R. v. Pinske (1988), 30 B.C.L.R.(2d) 114 (C.A.), affd. [1989] 2 S.C.R. 979; 100 N.R. 399, refd to. [para. 210].

Schrump v. Koot (1977), 18 O.R.(2d) 337 (C.A.), refd to. [para. 216].

Resendes v. Boutros (1989), 2 C.C.L.T.(2d) 275 (Ont. H.C.), refd to. [para. 219].

S.F.P. v. MacDonald et al. (1999), 234 A.R. 273 (Q.B.), refd to. [para. 220].

Cook v. Benson Lobster Co. (1990), 105 N.B.R.(2d) 265; 264 A.P.R. 265 (C.A.), refd to. [para. 251].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1 (C.A.), refd to. [para. 251].

Madge v. Meyer et al., [2000] 5 W.W.R. 38; 256 A.R. 201 (Q.B.), refd to. [para. 266].

Engel v. Salyn et al, [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81; 99 D.L.R.(4th) 401, refd to. [para. 266].

Olson v. General Accident Assurance Co. of Canada (1998), 218 A.R. 310 (Q.B.), refd to. [para. 267].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 282].

Philip v. Hironaka (1997), 210 A.R. 1; 55 Alta. L.R.(3d) 224 (Q.B.), refd to. [para. 294].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 295].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1; 31 C.C.L.T. 113, refd to. [para. 299].

Authors and Works Noticed:

Mewett, A.W., and Sankoff, P.J., Witnesses (Looseleaf), p. 2-22.1 [para. 223].

Sopinka, J., Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (2nd Ed. 1999), para. 6.321 [para. 231].

Counsel:

Gary J. Bigg and Olivier Fuldauer, for the plaintiff;

Peter J. Forrester and Geraldine Texeira, for the defendants, Philip John Dynes and Timothy Dynes.

This action was heard on May 15, 2001, before Chrumka, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on May 2, 2002.