Date: 19980108
Docket: CA 141365
NOVA SCOTIA COURT OF APPEAL
Cite as: Marshall v. Langthorn, 1998 NSCA 43
Clarke, C.J.N.S.; Hart and Freeman, JJ.A.
BETWEEN:
WILLIAM MARSHALL ) John Kulik and Paul McLean
) for the appellant
Appellant )
)
- and - )
)
DANIEL SCOTT LANGTHORN ) Ronald W. Burton
) for the respondent
Respondent )
)
)
)
) Appeal heard:
)
) Judgment delivered:
)
)
The reasons for judgment of the Court were delivered orally by:
[1] This is an appeal from an award of damages made by Justice Hamilton on July 21, 1997 and confirmed in her order dated September 3, 1997.
[2] The action arose from injuries and loss suffered by the respondent in a motor vehicle accident near Lake Echo on July 22, 1994. In making a left turn, the appellant crossed the lane for oncoming traffic and collided with the respondent who was driving his motorcycle. Liability is not in issue.
[3] The respondent, then 19 years old, was in good health. As a result of the accident, he suffered several aggravating injuries requiring hospitalization, ongoing medical attention and resulting in an inability to obtain and hold steady employment. While there is some variance in the medical opinions, it appears there is the chance that the respondent may suffer some pain in his right foot for the rest of his life. Surgery may be required to remove pins in the foot. Otherwise, he has made a reasonably good recovery subject to the caution that he must be careful when lifting heavy objects.
[4] At the time of the accident he was employed by an industrial cleaning company earning $10.00 per hour.
[5] Justice Hamilton awarded the respondent a total of $112,971.43. The principal heads, not including interest and disbursements are:
General Damages $30,000.00
Past Loss of Income $26,000.00
Loss of Future Income/
Loss of Earning Capacity $40,000.00
Quantum Meruit for the
Respondent's Mother $1,000.00
Special Damages $3,186.00
Costs $5,900.00
[6] The appellant contends the trial judge erred in law and fact by awarding the respondent $26,000.00 for past loss of income and $40,000.00 for future loss of income. In the alternative, the appellant says if the respondent is entitled to any amount for either or both, it should be varied downward.
[7] In his cross-appeal, the respondent argues the trial judge erred by failing to award a larger sum for past loss of income, by failing to make an award for cost of future care and by failing to determine the general damages based on a higher range.
[8] We have reviewed the record in detail, including the submissions made by counsel, both written and oral. We have also carefully examined and considered the reasons for judgment given by the trial judge.
[9] The function of a Court of Appeal in circumstances similar to these was reviewed by this Court in White v. Slawter (1996), 149 N.S.R. (2d) 321.
[10] Justice Freeman wrote at page 339, para. 77, in part:
[77] The findings of a trial judge are not reversible merely because a court of appeal may disagree with them. The scope of the principle was stated by McLachlin, J., in Toneguzzo‑Norvel et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, at page 121:
It is by now well established that a Court of Appeal must not interfere with a trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it
. . .
He continued in paragraph 78, in part:
[78] With respect specifically to the assessment of damages, the position of an appeal court was expressed by McIntyre, J. writing for the Supreme Court of Canada in Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R. (3d) 385 at 388:
It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion. It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial Judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that a Court of Appeal is entitled to intervene.
. . .
[11] In the circumstances of this case on appeal, we are satisfied there was sufficient evidence upon which Justice Hamilton made her findings and reached her conclusions. We are also satisfied she did not proceed upon wrong or mistaken principles or commit manifest error. We find no cause to intervene.
[12] The result is that we dismiss both the appeal and the cross appeal. Since each is dismissed, there will be no award of costs.
C.J.N.S.
Concurred in:
Hart, J.A.
Freeman, J.A.