Walsh v. King,

• Jurisdiction: New Brunswick
• Judge: Rideout, J.
• Neutral Citation: 2007 NBQB 304
• Citation: (2007), 320 N.B.R.(2d) 182 (TD),2007 NBQB 304,320 NBR(2d) 182,(2007), 320 NBR(2d) 182 (TD),320 N.B.R.(2d) 182
• Date: 17 September 2007
• Court: Court of Queen's Bench of New Brunswick (Canada)

Walsh v. King (2007), 320 N.B.R.(2d) 182 (TD);

    320 R.N.-B.(2e) 182; 825 A.P.R. 182

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Temp. Cite: [2007] N.B.R.(2d) TBEd. SE.042

Renvoi temp.: [2007] N.B.R.(2d) TBEd. SE.042

Patrick Walsh (plaintiff) v. David King (defendant)

(M/C/1050/00; 2007 NBQB 304; 2007 NBBR 304)

Indexed As: Walsh v. King

Répertorié: Walsh v. King

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

September 17, 2007.

Summary:

Résumé:

The plaintiff sued the defendant for damages arising out of a rear-end collision.

The New Brunswick Court of Queen's Bench, Trial Division, held that the defendant was liable for the collision and awarded the plaintiff damages of $241,417.36, including general damages of $70,000.

Damage Awards - Topic 42

Injury and death - Arm and hand injuries - Carpal tunnel syndrome - The plaintiff sued for damages for injuries suffered in a rear-end collision - The New Brunswick Court of Queen's Bench, Trial Division, noted that the plaintiff had experienced pain and had to have surgery to each wrist (carpal tunnel syndrome) and to his neck (cervical spine fusion with anterior cervical diskectomy) - Nevertheless, the evidence suggested that his ability to function and work had not been totally eliminated - He was involved in a very minor accident which, on its face, did not justify his being off work for seven years - The evidence suggested that at first he was making good progress with his physiotherapy and his future was positive - He could have commenced his educational retraining earlier and perhaps been employed by now - The court awarded damages of $241,417.36, including general damages of $70,000 - See paragraphs 38 to 57.

Damage Awards - Topic 175

Injury and death - Neck injuries - Intervertebral disc - [See Damage Awards - Topic 42 ].

Damage Awards - Topic 187

Injury and death - Neck injuries - Spinal cord (incl. resulting in paralysis) - [See Damage Awards - Topic 42 ].

Damage Awards - Topic 488

Injury and death - General damage awards - Cost of housekeeping services and child care - A plaintiff claimed for past and future loss of personal valuable services - He claimed that it took him a lot longer to do his share of the household chores and, further, that there had been a shift of these chores between himself and his partner - He claimed $17,144.90 for past and $36,016.56 for future loss of valuable services, on the basis that he would require an additional three hours a week at $12.82 an hour - A Molly Maid invoice suggested that the weekly cost to clean his home was $94.05, including HST - The New Brunswick Court of Queen's Bench, Trial Division, held that the cost of Molly Maid would be $45 for the plaintiff's share of the housework, calculated as one-half - A review of the plaintiff's functional assessment suggested that it took the plaintiff about 1/3 longer to perform his tasks - Therefore, $15 a week should compensate him for his loss of valuable services - The actuary also assumed that by age 70 or 75 the plaintiff would have need for assistance in any event - The court awarded the plaintiff $12,880.70 for future loss of valuable services and $6,725.50 for past loss of valuable services - See paragraphs 69 to 74.

Damage Awards - Topic 491

Injury and death - General damage awards - Loss of valuable services - [See Damage Awards - Topic 488 ].

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - The plaintiff sued for damages for injuries suffered in a rear-end collision - He had not worked in the seven years since - The New Brunswick Court of Queen's Bench, Trial Division, noted that while the plaintiff could not return to his previous employment as a cook, it was also clear that he could do light or sedentary work - Considering the medical evidence, he was physically capable of starting his GED and computer courses much earlier than he had - He had had periods of incapacity during the different surgeries he had undergone, but he could have started his re-education courses earlier - Therefore, the appropriate measure of past and future loss of income was to accept the expert's calculations of past loss of earnings capacity up to the first day of trial as compensation for both past and future loss of income - See paragraphs 58 to 61.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 492.1 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - [See Damage Awards - Topic 492.1 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 492.1 ].

Dommages-intérêts - Cote 1550

Dommages-intérêts généraux - Dommages-intérêts généraux pour préjudice corporel - Perte de salaire ou de gains futurs (y compris la formule de calcul) - [Voir Damages - Topic 1550 ].

Dommages-intérêts - Cote 1550.1

Dommages-intérêts généraux - Dommages-intérêts généraux pour préjudice corporel - Perte de salaire ou de gains subie avant le procès - [Voir Damages - Topic 1550.1 ].

Évaluation des dommages-intérêts - Cote 42

Blessures et décès - Blessures au bras et à la main - Syndrome du canal carpien - [Voir Damage Awards - Topic 42 ].

Évaluation des dommages-intérêts - Cote 175

Blessures et décès - Blessures au cou - Disque intervertébral - [Voir Damage Awards - Topic 175 ].

Évaluation des dommages-intérêts - Cote 187

Blessures et décès - Blessures au cou - Moelle épinière (y compris paralysie conséquente) - [Voir Damage Awards - Topic 187 ].

Évaluation des dommages-intérêts - Cote 488

Blessures et décès - Évaluation des dommages-intérêts généraux - Coût des services domestiques et frais de garde d'enfant - [Voir Damage Awards - Topic 488 ].

Évaluation des dommages-intérêts - Cote 491

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de services utiles - [Voir Damage Awards - Topic 491 ].

Évaluation des dommages-intérêts - Cote 492.1

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de revenus antérieure au procès - [Voir Damage Awards - Topic 492.1 ].

Évaluation des dommages-intérêts - Cote 493

Blessures et décès - Évaluation des dommages-intérêts généraux - Perte de revenus futurs - [Voir Damage Awards - Topic 493 ].

Cases Noticed:

Greenfield et al. v. Wood et al., [1997] N.B.R.(2d) (Supp.) No. 103 (T.D.), refd to. [para. 35].

Richard v. Arsenault, [2002] N.B.R.(2d) (Supp.) No. 31 (T.D.), refd to. [para. 36].

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; 140 D.L.R.(4th) 235, refd to. [para. 45].

Ross v. Isaacs, [2001] N.B.R.(2d) (Supp.) No. 96; 2001 NBQB 234, refd to. [para. 48].

Morris v. Budnarchuk (1999), 228 A.R. 158; 188 W.A.C. 158 (C.A.), consd. [para. 53].

Woods v. Hubley (1995), 140 N.S.R.(2d) 180; 399 A.P.R. 180 (S.C.), consd. [para. 53].

Morris v. Collette, 2001 NBQB 111, consd. [para. 53].

Price v. Price, 2005 NBQB 435, consd. [para. 53].

Wittmeier v. Scholes (1999), 239 A.R. 42; 1999 ABQB 4, consd. [para. 53].

Switzer v. Buchi, [1998] B.C.T.C. Uned. B13 (S.C.), consd. [para. 53].

Djukic v. Hahn, [2006] B.C.T.C. Uned. 69; 2006 BCSC 154, consd. [para. 53].

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66; 681 A.P.R. 66; 2003 NBCA 42, refd to. [para. 62].

Counsel:

Avocats:

Joseph D. Cantini, on behalf of Mr. Walsh;

Brian F.P. Murphy and Myer Rabin, on behalf of Mr. King.

This action was heard on August 14-17 and 20, 2007, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on September 17, 2007.