C.A. No. 02880
NOVA SCOTIA COURT OF APPEAL
Cite as: Pottie v. Pottie, 1994 NSCA 15
Hallett, Matthews and Roscoe, JJ.A.
BETWEEN:
ALLISTER POTTIE, RONALD J. WEBB )
and CHERYL I.D. ALLEN ) David A. Miller, Q.C.
) Robert M. Purdy
) for the Appellants
Appellant )
)
- and - )
) Harold A. MacIsaac
) Ivo R. Winter
) for the Respondent
JANICE POTTIE )
)
Respondent ) Appeal Heard:
) February 10, 1994
)
)
) Judgment Delivered:
) February 10, 1994
)
)
)
)
)
)
)
)
THE COURT: Appeal allowed in part per oral reasons for judgment of Matthews, J.A.; Hallett and Roscoe, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
MATTHEWS, J.A.:
This is an appeal from portions of the assessment of damages by a judge of the Supreme Court in respect to injuries suffered by the respondent in a motor vehicle accident. The test to be applied by an appellate court on such an appeal is that expressed by Viscount Simon in Nance v. British Columbia Electric Railway, [1951] A.C. 601 at p. 613:
"Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage."
Courts in Canada have consistently followed that principle.
The appellants have raised several issues.
We have considered the material filed by counsel, including the factums and heard oral argument. It is our opinion that the amounts assessed by the trial judge concerning these matters under appeal should not be disturbed other than those to which reference will be made. Whether we would have awarded the same, more or less, or followed the same reasoning as the trial judge is not the test. The individual awards, considering the injuries and damages, are not so inordinately high as to be a wholly erroneous estimate of the awards of damages under appeal.
However, the trial judge did not apply the correct principle of law in respect to the issue of topping up by the employer of the amount received by the respondent for loss of wages, that is $2019.00. Considering the reasons expressed by the Supreme Court of Canada in Ratych v. Bloomer, [1990] 1 S.C.R. 940, 69 D.L.R. (4th) 25, the trial judge erred in not deducting the $2019.00 from the award.
As well, it is conceded that the trial judge erred in his calculation of the time the respondent would have taken for maternity leave. Consequently the sum of $1,333.00 there must be a further deduction of that amount from the award.
In total, the award granted by the trial judge should be reduced by $3,352.00.
We fix costs to the respondent on the appeal at $3000.00 plus disbursements. In the absence of agreement that provides otherwise for costs they shall be paid in equal amounts by the appellant represented by Mr. Miller of the one part and the appellants represented by Mr. Purdy on the other part.
J.A.
Concurred in:
Hallett, J.A.
Roscoe, J.A.
C.A. No. 02880
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
ALLISTER POTTIE, RONALD J. WEBB
and CHERYL I.D. ALLEN
)
Appellants )
- and - ) REASONS FOR
) JUDGMENT BY:
JANICE POTTIE )
) MATTHEWS,
) J.A.
Respondent )
)
)
)
)
)
)