Vogler v. Szendroi et al., (2010) 296 N.S.R.(2d) 76 (SC)

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 22, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 296 N.S.R.(2d) 76 (SC);2010 NSSC 399;2010 NSSC 390

Vogler v. Szendroi (2010), 296 N.S.R.(2d) 76 (SC);

    940 A.P.R. 76

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. OC.040

Richard Vogler (plaintiff) v. Christopher Szendroi and Carole Sheehan (defendants)

(Hfx No. 192712; 2010 NSSC 390; 2010 NSSC 399)

Indexed As: Vogler v. Szendroi et al.

Nova Scotia Supreme Court

Moir, J.

October 22, 2010 and November 1, 2010.

Summary:

Vogler was seriously injured in a car crash in Wyoming in August 2000 when he was 20 years old. Vogler's skull was fractured and his brain suffered a blunt trauma. The flesh on his right forearm was torn and one eye was badly damaged. His chest was punctured and his lung was bruised. His ribs and pelvis were fractured. He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects. The defendants admitted 95% liability. The substantive law of Wyoming applied, and that included an automatic and fixed contribution of 5% for Vogler's negligence in not wearing a seatbelt. At issue was the assessment of Vogler's damages.

The Nova Scotia Supreme Court assessed Vogler's damages and granted judgment accordingly.

Damage Awards - Topic 35

Injury and death - Arm and hand injuries - Lacerations and soft tissue injuries - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 56

Injury and death - Body injuries - Chest (incl. lungs and ribs) - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 59

Injury and death - Body injuries - Pelvis and pubic bones - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 105

Injury and death - Head injuries - Skull fracture and closed head injuries - Vogler was seriously injured in an August 2000 car crash when he was 20 years old - Vogler's skull was fractured and his brain suffered a blunt trauma - The flesh on his right forearm was torn and one eye was badly damaged - His chest was punctured and his lung was bruised - His ribs and pelvis were fractured - He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects - Vogler's information processing efficiency and memory function were permanently impaired - Those impairments were mild, but had serious consequences for Vogler - The injury to Vogler's left eye caused him significant problems - His left vision was blurry, revealing shapes without detail - When he covered his good eye he could not read - This affected his general vision - For example, his depth perception - The Nova Scotia Supreme Court stated that "I assess fair compensation for the intellectual impairments, the loss of sight in one eye, the continuing problem with the right forearm, the healed fractures and other injuries, and the pain endured because of these at $150,000" - See paragraphs 146 to 159.

Damage Awards - Topic 226

Injury and death - Eye injuries - Loss of sight in one eye - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - Vogler suffered serious injuries, including brain injuries, in a car crash in 2000 when he was 20 years old - He made a remarkable recovery, but there were some lasting effects, including mild impairments of Vogler's information processing efficiency and memory function - At issue was the assessment of damages for Vogler's loss of income and lost earning capacity - While Vogler had been accepted to three universities after high school, he had chosen to enter programs of Buddhist studies in Vermont and Colorado - Following the accident, Vogler did some part time work and some carpentry work - In 2002, he got a job with Rainbow Grocery Co-operative in San Francisco where he still worked earning about $50,000 per year - The Nova Scotia Supreme Court found that while Vogler did not have fixed plans for his future after high school, "he had momentum" and "he was going somewhere" - The court was satisfied that, at the time of the car crash, Vogler had years of interesting studies before him to be followed by interesting work in a profession paying better than $50,000 per year - If Vogler had followed that path he would have earned substantially less than he had earned in the last decade despite the injuries - There was therefore no quantifiable loss to this point - However, Vogler's processing and memory impairments went directly to the kind of income he would be able to earn in comparison with what he would have earned without those impairments and his loss of function led to a loss of earning capacity - The court concluded that $180,000 was a fair and adequate global award for loss of income earning capacity - See paragraphs 160 to 206.

Damage Awards - Topic 580

Torts - Injury to third parties - General and special damages for personal care of injured person - Vogler suffered serious injuries, including brain injuries, in a car crash when he was 20 years old - He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects - The Nova Scotia Supreme Court awarded $15,000 damages for the care provided by Vogler's parents during his rehabilitation - The compensation took account of the time that Vogler's mother was on leave from work to look after her son, and the considerable efforts invested by both parents in basic care and in organizing services and activities that promoted Vogler's partially successful recovery in 2000 and 2001 - See paragraphs 207 to 214.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - Vogler suffered serious injuries, including brain injuries, in a car crash when he was 20 years old - He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects - At issue was the assessment of Vogler's damages, including lost income and loss of income earning capacity - The Nova Scotia Supreme Court stated that "We often assess loss of income before trial separately from loss of earning capacity in the future. What the victim actually earned after the injury is a known fact, capable of proof on a balance of probabilities. Future earnings are unknown and the court is required to make a projection. However, sometimes, especially with injuries to the young, these two kinds of pecuniary damages are best assessed together because what was actually earned before trial has to be compared with a projected income that is more speculative than in cases of a proven career path or earnings history. I propose to assess both together" - See paragraphs 161 to 162.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - [See Damage Awards - Topic 492 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 492 and first Damages - Topic 1549 ].

Evidence - Topic 522

Presentation of evidence - Order of - Vogler suffered serious injuries, including brain injuries, in a car crash when he was 20 years old - He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects - At issue was the assessment of Vogler's damages - Vogler testified first - Family and friends of Vogler testified after he did, and he was absent from the trial until the last day - Vogler's counsel explained that it would be better if Vogler did not hear the negative things friends and family had to say about him - The defendants' counsel (McKenna) argued that this approach offended the rule in Brown v. Dunn - McKenna recognized that Brown v. Dunn was about cross-examination, not the order of witnesses - However, she said that the underlying principle should apply to the "very unusual situation where the adult plaintiff was, by his own counsel, excluded from the courtroom during the testimony of the lay witnesses" - The Nova Scotia Supreme Court held that, in the circumstances of this case, the weight to be given to testimony of witnesses was not affected by the order in which they were called - The court had the discretion, on the last day of trial, to require Vogler to return to the stand for cross-examination on new subjects - That was not requested - It did not occur to the court that it needed to hear more from Vogler in order to assess the testimony of family and friends - While the court placed more weight on Vogler's evidence about his own impediments, that had nothing to do with the order of witnesses - See paragraphs 11 to 18.

Interest - Topic 5004

Interest as damages (prejudgment interest) - General principles - Discretion of judge - [See Interest - Topic 5146 ].

Interest - Topic 5146

Interest as damages (prejudgment interest) - Torts - Delay - Effect of - Vogler suffered serious injuries, including brain injuries, in an August 2000 car crash in Wyoming - He made a remarkable recovery, but the brain injuries were severe in the beginning and there were some lasting effects - At issue was the assessment of Vogler's damages - The parties agreed that 2.5% a year was the correct rate for prejudgment interest - However, while the plaintiff argued for 2.5% over six years, the defendants argued for 2.5% over four years on the basis that Vogler unreasonably delayed the prosecution of his case - The Nova Scotia Supreme Court stated that "Although plaintiffs who unreasonably delayed presentation of their cases have often been limited to four years, s. 41(k)(iii) of the Judicature Act entrusts judges with a discretion. A discretion cannot defer to convention. It must be exercised according to the particular circumstances of each case. Mr. Vogler was injured in 2000. He started this suit in 2003, when his intellectual impairments were beginning to plateau. ... two years of the litigation was devoted to the issue of whether Wyoming or Nova Scotia was the proper forum ... In the circumstances, a period of six years under s. 41(k)(iii) reflects a reasonable exercise of my discretion" - See paragraphs 215 to 218.

Cases Noticed:

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 14].

B.M.G. v. Nova Scotia (Attorney General) (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257 (C.A.), refd to. [para. 146].

Dmitrovic v. Michaels, [1994] B.C.T.C. Uned. A36 (S.C.), refd to. [para. 148].

Bakatsis v. Urquhart et al., [1996] B.C.T.C. Uned. A02 (S.C.), refd to. [para. 148].

Anderson v. Berkeley, [1998] B.C.T.C. Uned. B85 (S.C.), refd to. [para. 149].

Lam et al. v. Forster et al., [2003] A.R. Uned. 124 (Q.B.), refd to. [para. 149].

Nagle v. Thomas (2009), 342 N.B.R.(2d) 259; 878 A.P.R. 259 (T.D.), refd to. [para. 149].

Bezanson v. Hayter (2008), 274 N.S.R.(2d) 47; 874 A.P.R. 47; 2008 NSSC 280, affd. (2009), 284 N.S.R.(2d) 171; 901 A.P.R. 171; 2009 NSCA 113, refd to. [para. 151].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 151].

Boudreau v. Paquin (1979), 25 N.B.R.(2d) 271; 51 A.P.R. 271 (Q.B.), refd to. [para. 152].

MacArthur v. Maessen (1981), 43 N.S.R.(2d) 494; 81 A.P.R. 494 (T.D.), refd to. [para. 152].

Dempsey v. Brown and Prudential Life Insurance Co. (1985), 67 N.S.R.(2d) 373; 155 A.P.R. 373 (T.D.), refd to. [para. 152].

L.M.M. v. Nova Scotia (Attorney General) (2010), 287 N.S.R.(2d) 347; 912 A.P.R. 347; 2010 NSSC 44, refd to. [para. 162].

Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81, refd to. [para. 163].

Engel v. Kam-Ppelle Holdings Ltd. - see Engel v. Salyn et al.

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. 165].

Kern v. Steele (2003), 220 N.S.R.(2d) 51; 694 A.P.R. 51; 2003 NSCA 147, refd to. [para. 166].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, refd to. [para. 166].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209, refd to. [para. 167].

Gaudet v. Doucet et al. (1991), 101 N.S.R.(2d) 309; 275 A.P.R. 309 (T.D.), refd to. [para. 169].

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. 170].

Chow et al. v. Hiscock et al., [2005] B.C.T.C. Uned. A02; 2005 BCSC 1933, refd to. [para. 170].

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271 (C.A.), refd to. [para. 175].

Mulholland et al. v. Riley Estate et al. (1995), 63 B.C.A.C. 145; 104 W.A.C. 145 (C.A.), refd to. [para. 177].

McKinnon v. Allen et al., [2005] B.C.T.C. Uned. 336 (S.C.), refd to. [para. 177].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 207].

Phillips et al. v. Kendall Estate et al. (1994), 132 N.S.R.(2d) 161; 376 A.P.R. 161 (S.C.), refd to. [para. 211].

Dillon v. Kelly, [1995] N.S.J. No. 636 (S.C.), refd to. [para. 211].

Locke v. Lea, [1997] N.S.J. No. 186 (S.C.), refd to. [para. 211].

Landry v. McCormick Estate (1997), 161 N.S.R.(2d) 197; 477 A.P.R. 197 (C.A.), refd to. [para. 211].

Mader v. Lahey et al. (1998), 169 N.S.R.(2d) 182; 508 A.P.R. 182 (C.A.), refd to. [para. 211].

Authors and Works Noticed:

Richardson, W. Augustus, and Jordan, Calvin, Calculating the Present Value (on Lump Sum of a Future Loss), Civil Litigation Lecture (1997), generally [para. 171].

Counsel:

Jason Gavras, for the plaintiff;

Jean McKenna, Lisa Richards and Kyla Russell, for the defendants.

This matter was heard on March 15 to 18 and 22, 2010, before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 22, 2010, and a supplementary decision on November 1, 2010.