Vogler v. Szendroi et al., 2011 NSCA 98

• Judge: MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 17, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 98;(2011), 308 N.S.R.(2d) 304 (CA)

Vogler v. Szendroi (2011), 308 N.S.R.(2d) 304 (CA);

    976 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. OC.045

Christopher Szendroi and Carole Sheehan (appellants) v. Richard Vogler (respondent)

(CA 343734; 2011 NSCA 98)

Indexed As: Vogler v. Szendroi et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.

October 25, 2011.

Summary:

In 2000, the 20 year old plaintiff was returning home from Colorado with the defendants when they were involved in a motor vehicle accident. The plaintiff sustained serious injuries, including a traumatic brain injury.

The Nova Scotia Supreme Court, in a decision reported at (2010), 296 N.S.R.(2d) 76; 940 A.P.R. 76, awarded the plaintiff judgment against the defendants for $464,245, which included $150,000 for nonpecuniary damages and $180,000 for diminished earning capacity. In a decision reported at (2011), 297 N.S.R.(2d) 391; 943 A.P.R. 391, increased costs were awarded on the basis of a pre-trial settlement offer. The defendants appealed both the award of $150,000 for nonpecuniary damages and the diminished earning capacity award of $180,000. The defendants sought a partial stay of judgment pursuant to Civil Procedure Rule 90.41. They proposed to pay $275,000 to the plaintiff forthwith.

The Nova Scotia Court of Appeal, per Bryson, J.A., in a decision reported at (2011), 302 N.S.R.(2d) 323; 955 A.P.R. 323, granted a partial stay on the following terms: 1. The defendants were to pay the plaintiff $275,000 forthwith; 2. The balance of the amount due to the plaintiff was to be paid to his counsel in trust; 3. In the event that the plaintiff was successful on appeal in an amount greater than $275,000, he was to receive interest on the balance of the excess at the same rate of prejudgment interest ordered by the trial judge. The defendants' appeal proceeded.

The Nova Scotia Court of Appeal dismissed the appeal. The plaintiff was awarded costs of the appeal and the stay motion.

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 - The plaintiff was seriously injured in a 2000 car crash when he was 20 years old - The plaintiff'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 plaintiff's information processing efficiency and memory function were permanently impaired - Those impairments were mild, but had serious consequences for the plaintiff - The injury to the plaintiff'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 trial judge awarded the plaintiff general non-pecuniary damages of $150,000 - The defendants appealed from the award - The Nova Scotia Court of Appeal dismissed the appeal - The award was within the range of reasonable outcomes for the severe injuries suffered by the plaintiff - See paragraphs 2 to 6.

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 - [See Damages - Topic 1549 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The plaintiff suffered serious injuries, including brain injuries, in a 2000 car crash when he was 20 years old - He made a remarkable recovery, but there were some lasting effects, including mild impairments of the plaintiff's information processing efficiency and memory function - The trial judge held that the plaintiff'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 trial judge concluded that $180,000 was a fair and adequate global award for loss of income earning capacity - The defendants appealed - The Nova Scotia Court of Appeal dismissed the appeal - On the basis of considerable evidence, the trial judge concluded that the injuries had led to "information processing and memory deficits", and that but for the accident, the plaintiff would have been capable of "meaningful work" - The result being that his injuries would probably translate into lower earnings in the future - Consistent with the case law, the trial judge opted to use a "global" rather than an actuarial approach and arrived at a figure for loss of future income earning capacity of $180,000 - There was more than ample evidence to support the trial judge's findings and conclusions in making the award - See paragraphs 7 to 8.

Counsel:

Jean McKenna, for the appellants;

Jason Gavras, for the respondent.

This appeal was heard on October 17, 2011, before MacDonald, C.J.N.S., Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Farrar, J.A., on October 25, 2011.