Young v. Dawe, (1995) 127 Nfld. & P.E.I.R. 272 (NFTD)

• Judge: Lang, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 16, 1994
• Jurisdiction: Newfoundland and Labrador
• Citations: (1995), 127 Nfld. & P.E.I.R. 272 (NFTD)

Young v. Dawe (1995), 127 Nfld. & P.E.I.R. 272 (NFTD);

    396 A.P.R. 272

MLB headnote and full text

Frederick Young, Jr. (plaintiff) v. Deborah A. Dawe (defendant)

(1988 St. J. No. 1860)

Indexed As: Young v. Dawe

Newfoundland Supreme Court

Trial Division

Lang, J.

January 17, 1995.

Summary:

A motorist sued for injuries allegedly received in a motor vehicle accident. The defendant admitted liability. At issue was the quantum of damages.

The Newfoundland Supreme Court, Trial Division, assessed damages accordingly.

Damage Awards - Topic 66

Injury and death - Body injuries - Back - General - In 1986, the plaintiff sustained a soft tissue injury to his back - Activities unrestricted except for heavy work and lifting - Advised in 1988 to seek career retraining, but chose to remain employed at his father's masonry business - Sub­mitted actuarial evidence based on a total disability from working and on losing probable employment with the Canadian Armed Forces - The Newfoundland Supreme Court, Trial Division, rejected the actuarial evidence, because the plaintiff was not permanently disabled and employ­ment with the Armed Forces was speculat­ive - The court awarded $20,000 for non­pecuniary general damages and $20,000 for diminished working capacity - The court refused damages for future loss of earnings and the cost of retraining, where the plaintiff failed to mitigate.

Evidence - Topic 122

Degree, standard or burden of proof - Burden of proof - Civil actions - The Newfoundland Supreme Court, Trial Divi­sion, discussed the burden of proof in a civil action - See paragraphs 3 to 6.

Interest - Topic 5146

Interest as damages (prejudgment interest) - Torts - Delay - Effect of - A plaintiff sued for injuries suffered in 1986 - Lia­bility was admitted - The trial took place in 1994 and the court assessed damages accordingly - The Newfoundland Supreme Court, Trial Division, stated that the eight year delay to bring the matter to trial was unreasonable - The court granted the plaintiff interest in accordance with the Judgment Interest Act, but limited pre­judgment interest to the two year period preceding the trial - See paragraphs 79, 80.

Cases Noticed:

Poirier v. Dyer and Dyer (1989), 91 N.S.R.(2d) 119; 233 A.P.R. 119 (T.D.), consd. [para. 66].

Pascoe and Pascoe v. Ledwich and Ledwich (1979), 2 Man.R.(2d) 71 (C.A.), consd. [para. 68].

Conklin v. Smith et al., [1978] 2 S.C.R. 1107; 22 N.R. 140; 5 C.C.L.T. 113, refd to. [para. 71].

Clark v. Kereiff (1983), 43 B.C.L.R. 157 (C.A.), refd to. [para. 71].

Gionet and Gionet v. Albert (1981), 37 N.B.R.(2d) 688; 97 A.P.R. 688 (C.A.), refd to. [para. 71].

Brazil v. Rowsell (1991), 96 Nfld. & P.E.I.R. 342; 305 A.P.R. 342 (Nfld. C.A.), refd to. [para. 77].

Kolonel v. Kenny (1992), 98 Nfld. & P.E.I.R. 1; 311 A.P.R. 1 (Nfld. T.D.), refd to. [para. 77].

Neil v. Hayes (1993), 110 Nfld. & P.E.I.R. 356; 346 A.P.R. 356 (Nfld. T.D.), refd to. [para. 77].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 79].

Statutes Noticed:

Judgment Interest Act, R.S.N. 1990, c. J-2, generally [para. 79].

Rules of Court (Nfld.), Supreme Court Rules, rule 1.03(f) [para. 35].

Supreme Court Rules (Nfld.) - see Rules of Court (Nfld.), Supreme Court Rules.

Counsel:

Richard Rogers and Brad Wicks, for the plaintiff;

James Adams, Q.C., and Glen Noel, for the defendant.

This case was heard on December 16, 1994, before Lang, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following judgment which was filed on January 17, 1995.