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TYPES OF DAMAGES - For personal injuries - Prospective pecuniary loss

Friday, January 10, 2020 @ 6:23 AM  

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Appeal by the defendant from trial judgment awarding the respondent substantial damages for personal injuries suffered in a 2012 motor vehicle accident and from the costs award. The trial judge found the respondent was totally disabled by the injuries she sustained in a motor vehicle collision that ended her career in nursing. The appellant argued the trial judge erred in his findings of fact and in the damages awarded.

HELD: Appeal allowed in part. The evidence supported the trial judge’s finding that the force of the collision was not so inconsequential that the respondent could not possibly have been injured to the extent alleged. The trial judge correctly applied the law and did not err in assessing and weighing the facts leading him to ultimately conclude that the respondent had established that, but for the accident, she would not have suffered her injuries. The trial judge’s decision provided a thorough review of the medical evidence as well as a clear explanation of why he preferred the evidence of the respondent’s experts that she was totally disabled as a result of the accident over that of the appellant’s expert. The trial judge did not err in relying upon the respondent’s actuarial evidence or in finding that the respondent’s damages for loss of future income should be awarded on a gross, and not net, basis. Awarding future income loss or future loss of earning capacity on a gross basis did not amount to double recovery. The wording of s. 113BA(1) of the Insurance Act clearly provided that income loss suffered during the period before trial, whether it be loss of earnings or loss of earnings capacity, was to be calculated on a net basis. There was nothing in the section that would oust the common law right to damages for future lost income based on gross before tax earnings. While the trial judge erred in determining that there was a conflict between s. 113BA(1) of the Insurance Act and s. 2(1) of the Automobile Insurance Tort Recovery Limitation Regulations, this error did not affect the ultimate result. The trial judge erred in awarding both party-and-party costs under the Tariff, plus a further lump sum award. Such an approach was expressly prohibited by Rule 77.08. The $15,000 lump sum award over and above the Tariff award was set aside. Apart from the lack of any evidentiary basis to support the judge’s approach, the court was also troubled by the fact that no consideration appeared to have been given to the contingency component of the agreement between the respondent and her counsel. The very essence of a contingency fee agreement was the risk associated with achieving a successful outcome. There was no evidence presented to prove time charges incurred and no consideration was given to whether in fact a contingency even arose since the appellant had admitted liability prior to trial.

MacVicar Estate v. MacDonald, [2019] N.S.J. No. 492, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., J.W.S. Saunders and D.P.S. Farrar JJ.A., November 20, 2019. Digest No. TLD-January62020009