Vincent v. Abu-Bakare, 2003 NBCA 42

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Larlee and Robertson, JJ.A.
• Neutral Citation: 2003 NBCA 42
• Citation: 2003 NBCA 42,(2003), 259 N.B.R.(2d) 66 (CA),259 NBR (2d) 66,[2003] NBJ No 198 (QL),(2003), 259 NBR(2d) 66 (CA),[2003] N.B.J. No 198 (QL),259 NBR(2d) 66,259 N.B.R.(2d) 66
• Date: 29 May 2003
• Court: Court of Appeal (New Brunswick)

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66 (CA);

    259 R.N.-B.(2e) 66; 681 A.P.R. 66

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.B.R.(2d) TBEd. MY.030

Tahira Abu-Bakare and Tasiru Abu-Bakare (defendants/appellants) v. Gary Vincent (plaintiff/respondent)

(64/02/CA; 2003 NBCA 42)

Indexed As: Vincent v. Abu-Bakare

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Robertson, JJ.A.

May 29, 2003.

Summary:

The plaintiff, 52 years of age at the date of trial in 2002, was injured in a 1998 motor vehicle accident. The defendants admitted liability. The sole issue was the quantum of damages.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment re­ported [2002] N.B.R.(2d) (Supp.) No. 26, awarded the plaintiff $50,000 general dam­ages for nonpecuniary loss (plus $11,960 interest), $45,000 for loss of earning capaci­ty, $18,850 for loss of sick leave benefits, $3,000 for loss of valuable services and $5,000 for future care and treatment. The defendants appealed the damage awards for nonpecuniary loss and for loss of sick leave benefits, which the defendants submitted were contrary to s. 265.4(1)(b) of the In­surance Act. The plaintiff cross-appealed, submitting that the award for loss of earning capacity was inordinately low.

The New Brunswick Court of Appeal allowed the appeal in part. The award for nonpecuniary loss was not so inordinately excessive as to warrant appellate interven­tion. However, the court set aside the award for loss of sick leave benefits. The court dismissed the cross-appeal.

Damage Awards - Topic 37

Injury and death - Arm and hand injuries - Thumb - The plaintiff, 52 years of age at the time of trial in 2002, was injured in a 1998 motor vehicle accident (neck, back, shoulder, left knee and both thumbs) - The plaintiff underwent extensive physiotherapy and massage treatments - He had surgery on one thumb to correct a "locking" prob­lem - Surgery on the other thumb was expected - Results of his injuries included lifting restrictions due to shoulder pain, inability to fully turn his neck without pain, decreased grip strength, a limp, dif­ficulty sitting or driving for long periods and difficulty grasping objects - The plain­tiff was a special education teacher who hoped to retire at age 60, then supplement his income by doing carpentry work and training horses - Such activities would be restricted by his physical limitations - The plaintiff had reached the chronic or long-term stage and would require physiother­apy indefinitely - The plaintiff used up 74 days of accumulated sick leave benefits and the likelihood of his working until his intended retirement date was reduced, as was his ability to earn income after that date - The trial judge awarded the plaintiff $50,000 general damages for nonpecuniary loss - The New Brunswick Court of Ap­peal held that although the award was unquestionably generous, it was not so inordinately high as to warrant appellate intervention - See paragraphs 28 to 38.

Damage Awards - Topic 57

Injury and death - Body injuries - Shoulder - [See Damage Awards - Topic 37 ].

Damage Awards - Topic 66

Injury and death - Body injuries - Back - General - [See Damage Awards - Topic 37 ].

Damage Awards - Topic 130

Injury and death - Leg injuries - Knee - [See Damage Awards - Topic 37 ].

Damage Awards - Topic 178

Injury and death - Neck injuries - Whip­lash - [See Damage Awards - Topic 37 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff, 52 years of age at the time of trial in 2002, was injured in a 1998 motor vehicle ac­cident (neck, back, shoulder, left knee and both thumbs) - The plaintiff underwent extensive physiotherapy and massage treat­ments - He had surgery on one thumb to correct a "locking" problem - Surgery on the other thumb was expected - Results of his injuries included lifting restrictions due to shoulder pain, inability to fully turn his neck without pain, decreased grip strength, a limp, difficulty sitting or driving for long periods and difficulty grasping objects - The plaintiff was a special education teach­er who hoped to retire at age 60, then supplement his income by doing carpentry work and training horses - Such activities would be restricted by his physical limita­tions - The plaintiff had reached the chron­ic or long-term stage and would require physiotherapy indefinitely - The plaintiff used up 74 days of accumulated sick leave benefits and the trial judge held that the likelihood of his working until his intended retirement date was reduced, as was his ability to earn income after that date - The trial judge awarded the plaintiff $45,000 damages for loss of earning capacity - The plaintiff cross-appealed, seeking a greater award - The defendant did not appeal - The New Brunswick Court of Appeal, noting the lack of any expert evidence, held that the evidentiary record warranted, at most, nominal damages for loss of earning capacity - Accordingly, the cross-appeal was dismissed - See paragraphs 67 to 75.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The New Brunswick Court of Appeal stated that two prerequisites to any award of pecuniary general damages for loss of earning capacity were "(1) a real and substantial possibility that the injured party will suffer lost earnings or profits, and (2) a rational connection between any such award and the evidence. ... Pecuniary losses, such as future loss of earning ca­pacity, are not to be factored into the assessment of nonpecuniary general dam­ages." - See paragraphs 4, 30.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The New Brunswick Court of Appeal held that "loss of earning capacity" and "future loss of earnings" were the same - The court rejected case law distin­guishing between the two and awarding damages for loss of earning capacity in the absence of any real and substantial pos­sibility that the injured party would suffer lost earnings or profits - The court rejected the theory that any restriction in employa­bility constituted a loss of a capital asset having intrinsic monetary value - See paragraphs 41 to 55.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The New Brunswick Court of Appeal stated that "the court must apply a two-step process in the calculation of pecuniary general damages for loss of earning capacity. First, the court must make an estimate of the chance that a loss of earnings or profits will occur. If the possibility of such a loss is speculative or negligible, the court need go no further; the claim has not been proven. If the pos­sibility is real and substantial, the court must reflect the chances of that loss oc­curring in the amount of damages that it awards. ... What the court quantifies is the present value, as of trial, of the risk of future lost earnings or profits. ... In most cases where, as here, the plaintiff has returned to his previous employment with­out any ongoing loss of pay, the trial court should not be expected to quantify the present value of the risk of premature retirement without the assistance of duly qualified experts. Actuarial evidence, in particular, appears indispensable if the court is to have the requisite data, includ­ing the results of studies on the effect of poor health as a determinant of early re­tirement, and the means of ascertaining the present value of any related financial loss accruing several years down the road." - See paragraphs 61, 65.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See second Damages - Topic 1549 ].

Damages - Topic 1552

General damages - General damages for personal injury - Loss of unused sick leave benefits - The plaintiff used 74 days of accumulated sick leave from the date of the accident in which he was injured and the trial date - He still had 50 days ac­cumulated - The trial judge awarded the plaintiff $18,848.46 in damages for loss of a capital asset - Unused sick leave benefits were not redeemable in cash - The New Brunswick Court of Appeal struck the award - Given that the plaintiff was awarded damages for loss of earning ca­pacity, the award for loss of sick leave benefits would constitute double recovery - Further, there was no evidence of a real and substantial possibility that the plain­tiff's bank of sick leave benefits would be insufficient to cover absences from work unrelated to his accident injuries - See paragraphs 77 to 81.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The New Brunswick Court of Appeal stated that "absent an error of principle of law, an error in the application of the material factors, a lack of material evidence or a misapprehension of critical evidence, a trial judge's award of nonpecuniary general damages must stand unless it reflects a 'palpably incor­rect' or 'wholly erroneous' assessment" - See paragraph 28.

Cases Noticed:

Cleary v. McCluskey (2002), 252 N.B.R.(2d) 10; 658 A.P.R. 10 (C.A.), refd to. [para. 4].

Naylor Group Inc. v. Ellis-Don Construc­tion Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341, refd to. [para. 28].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 30].

Cyr v. Roman Catholic Bishop of Ed­mundston (1982), 39 N.B.R.(2d) 361; 103 A.P.R. 361 (C.A.), refd to. [para. 30].

Martin v. Lombardo and Lombardo (1986), 68 N.B.R.(2d) 389; 175 A.P.R. 389 (C.A.), refd to. [para. 30].

Sprague v. Larocque (1986), 75 N.B.R.(2d) 357; 188 A.P.R. 357 (C.A.), refd to. [para. 30].

Cook v. Benson Lobster Co. (1990), 105 N.B.R.(2d) 265; 264 A.P.R. 265 (C.A.), refd to. [para. 30].

Donnelly v. Bélanger (1991), 122 N.B.R.(2d) 48; 306 A.P.R. 48 (C.A.), refd to. [para. 30].

Bertin v. Kristoffersen et al. (2001), 244 N.B.R.(2d) 315; 634 A.P.R. 315 (C.A.), refd to. [para. 30].

Ritchie v. Thompson (1994), 155 N.B.R.(2d) 35; 398 A.P.R. 35 (C.A.), refd to. [para. 31].

Poirier v. Donelle et al. (1996), 173 N.B.R.(2d) 75; 441 A.P.R. 75 (C.A.), refd to. [para. 31].

Kinsella v. Logan et al. (1996), 179 N.B.R.(2d) 161; 455 A.P.R. 161 (C.A.), refd to. [para. 32].

Betts v. Reilly (1997), 194 N.B.R.(2d) 226; 496 A.P.R. 226 (C.A.), refd to. [para. 34].

Tomer v. Wood (1997), 188 N.B.R.(2d) 380; 480 A.P.R. 380 (C.A.), refd to. [para. 36].

King v. Buckley et al. (1997), 195 N.B.R.(2d) 1; 499 A.P.R. 1 (T.D.), refd to. [para. 36].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247 (C.A.), refd to. [para. 36].

Belyea v. Hammond (2000), 231 N.B.R.(2d) 305; 597 A.P.R. 305 (C.A.), refd to. [para. 37].

Curi v. Colina, [1998] E.W.J. No. 985 (C.A.), refd to. [para. 39].

Fairley v. Thompson Ltd., [1973] 2 Lloyd's Rep. 40 (C.A.), disagreed with [para. 42].

DeMerchant v. Price (2001), 241 N.B.R.(2d) 49; 625 A.P.R. 49 (T.D.), refd to. [para. 42].

Doucette v. Thompson (2002), 253 N.B.R.(2d) 212; 660 A.P.R. 212 (T.D.), refd to. [para. 42].

Moeliker v. Reyrolle (A.) & Co., [1977] 1 W.L.R. 132 (C.A.), refd to. [para. 43].

Browning v. War Office and another, [1962] 3 All E.R. 1089 (C.A.), refd to. [para. 44].

Robson v. Liverpool City Council, [1993] E.W.J. No. 26 (C.A.), refd to. [para. 45].

Longeuay v. Thomas (1982), 35 O.R.(2d) 660 (C.A.), refd to. [para. 46].

Chenier v. Shanks, [1984] O.J. No. 227 (S.C.), refd to. [para. 46].

Teti v. Neilson Estate, [1987] O.J. No. 813 (S.C.), refd to. [para. 46].

Resendes v. Boutros (1989), 2 C.C.L.T.(2d) 275 (Ont. Sup. Ct.), refd to. [para. 46].

Finlayson et al. v. Roberts et al. (1996), 15 O.T.C. 239; 26 M.V.R.(3d) 66 (Gen. Div.), refd to. [para. 46].

Graham v. Baker (1961), 106 C.L.R. 340 (Austr. H.C.), refd to. [para. 47].

Tzouvelis v. Victorian Railways Com­missioners, [1968] V.R. 112, refd to. [para. 47].

Babkowski v. Perry, [1982] B.C.J. No. 1453 (S.C.), refd to. [para. 48].

Wolf-Watkins v. Scott (1990), 106 A.R. 384 (Q.B.), refd to. [para. 48].

Pallos v. Insurance Corp. of British Col­umbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310; 100 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 49].

Nelson v. Kanusa Construction, [1995] B.C.J. No. 958 (S.C.), refd to. [para. 49].

Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), refd to. [para. 51].

Gordon v. Harmon (1999), 246 A.R. 305 (Q.B.), refd to. [para. 51].

Little Plume v. Weir et al. (1998), 220 A.R. 332 (Q.B.), refd to. [para. 51].

Dennis v. Gairdner et al., [2002] B.C.T.C. 1289; 5 B.C.L.R.(4th) 275 (S.C.), refd to. [para. 51].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, refd to. [para. 53].

Savoie v. Bouchard and Board of Trustees of Hotel-Dieu d'Edmundston (1983), 49 N.B.R.(2d) 424; 129 A.P.R. 424 (C.A.), refd to. [para. 54].

Dow v. Sullivan (1994), 148 N.B.R.(2d) 297; 378 A.P.R. 297 (C.A.), refd to. [para. 54].

Pugsley v. Albert (1996), 179 N.B.R.(2d) 241; 455 A.P.R. 241 (C.A.), refd to. [para. 54].

LeClerc v. Sunbury Transport Ltd. and Risteen (1996), 184 N.B.R.(2d) 1; 469 A.P.R. 1 (C.A.), refd to. [para. 54].

Kelly v. Garnett et al. (1997), 191 N.B.R.(2d) 150; 488 A.P.R. 150 (C.A.), refd to. [para. 54].

Cornell v. Green, [1998] E.W.J. No. 326 (C.A.), refd to. [para. 59].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 60].

Jeux Maritimes Inc. v. Commission des loteries (N.-B.) (1999), 212 N.B.R.(2d) 341; 541 A.P.R. 341 (C.A.), refd to. [para. 60].

Young v. Fletcher and Lakeburn Lumber Retail Ltd. (1995), 161 N.B.R.(2d) 116; 414 A.P.R. 116 (C.A.), refd to. [para. 62].

Davies v. Mersey Regional Ambulance Services National Health Services Trust, [1998] E.W.J. No. 466 (C.A.), refd to. [para. 64].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 29 C.R.(4th) 243; 114 D.L.R.(4th) 419, refd to. [para. 70].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 77].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Fowler v. Carson (1983), 42 N.B.R.(2d) 169; 110 A.P.R. 169 (T.D.), refd to. [para. 79].

Rainbow Industrial Caterers Ltd. et al. v. Canadian National Railway Co. et al., [1991] 3 S.C.R. 3; 126 N.R. 354; 3 B.C.A.C. 1; 7 W.A.C. 1; 59 B.C.L.R.(2d) 129, refd to. [para. 80].

Gauthier v. Canada (Attorney General) (2000), 225 N.B.R.(2d) 211; 578 A.P.R. 211 (C.A.), refd to. [para. 80].

Authors and Works Noticed:

Brown, Cara L., Damages Estimating Pecuniary Loss (2001 Looseleaf), p. 1-5 [para. 57].

Bruce, Christopher J., Assessment of Per­sonal Injury Damages (3rd Ed. 1999), p. 18 [para. 65].

Cassels, J., Remedies: The Law of Dam­ages (2000), p. 125 [para. 49].

Cooper-Stephenson, Kenneth D., and Saun­ders, Iwan B., Personal Injury Damages in Canada (1st Ed. 1981), pp. 198 to 204 [para. 52].

Cooper-Stephenson, Kenneth D., and Saun­ders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 213 [para. 50]; 217 [paras. 50, 55].

Gerace-Gold, Mary, Rinas, Joan, and Green, Reuben, Future Economic Loss: A Triad of Views Necessary to Quantify Damages, 8 Adv. Soc. J. (No. 1) 9, pp. 9 to 26 [para. 69].

Kemp and Kemp, The Quantum of Dam­ages (1992) (Looseleaf Ed.), vol. 1, p. 1016/4, para. 1-011/2 [para. 45].

Munkman, John, Damages for Personal Injuries and Death (6th Ed. 1980), pp. 62 [para. 45]; 63 [para. 41].

Counsel:

Donald V. Keenan, for the appellants;

Catherine N. Fawcett and David N. Rog­ers, for the respondent.

This appeal and cross-appeal were heard on January 23, 2003, before Drapeau, C.J.N.B., Larlee and Robertson, JJ.A., of the New Brunswick Court of Appeal.

On May 29, 2003, Drapeau, C.J.N.B., delivered the following judgment in both official languages for the Court of Appeal.