Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Hayward v. Young, 2013 NSCA 64 

Date: 20130522

Docket: CA 388940

Registry: Halifax

Between:

Craig Hayward

Appellant

Respondent by Cross-Appeal

v.

Matilda Young

Respondent

Appellant by Cross-Appeal

Judge:                           The Honourable Mr. Justice Jamie W.S. Saunders

Appeal Heard:    January 21, 2013

Subject:                         Motor Vehicle Accident. General Damages for Soft Tissue Injury.  Range Set in Smith v. Stubbert (1992), 117 N.S.R. (2d) 118 (C.A.). Proof of Causation.  Proof of Damages.  Loss of Future Income or Diminished Earning Capacity. Loss of Valuable Services/Housekeeping. Cost of Future Care.  Standard of Review.  Credibility.

Summary:                     Following a motor vehicle collision in 2003 the appellant sued for substantial general and pecuniary damages, claiming he had suffered a traumatic brain injury in the crash.  After a 9-day trial the judge found that the claimant had failed to prove the 2003 accident caused or contributed to his complaint of a brain injury.  She was concerned that his doctors had been left in the dark about an assault 12 years earlier which had left him unconscious.  She concluded the medical evidence was insufficient to establish anything other than serious soft tissue injuries that developed into chronic pain.  She awarded him $120,000 general damages for pain and suffering and loss of amenities and another $10,000 for the cost of future care.  She dismissed his claims for loss of future income or diminished earning capacity as well as loss of valuable services/housekeeping.  He appealed and the defendant cross-appealed.

Held:                                       Appeal dismissed.  Cross-appeal allowed.  No reason to disturb the judge’s conclusion that the appellant had failed to prove the car accident caused or materially contributed to any alleged traumatic brain injury.  Her findings of fact including her serious reservations about the appellant’s own credibility were fully supported on the record.

                                                However, after finding that the appellant’s soft tissue injuries fell within the range established in Smith v. Stubbert, the judge clearly erred in awarding him more than double what that range allowed.  Accordingly, trial judge’s award of $120,000 for general damages was reduced to $57,500, that being the maximum one could expect to receive for non-pecuniary damages for such soft tissue injuries as established in Smith v. Stubbert, adjusted for inflation.