NOVA SCOTIA COURT OF APPEAL
[Cite as: Leddicote v. Nova Scotia (Attorney General), 2002 NSCA 47]
Date: 20020405
Docket: CA170962
Glube, C.J.N.S., Cromwell and Saunders, JJ.A.
BETWEEN:
ELIZABETH KATHLEEN LEDDICOTE
Appellant
- and -
ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in right of the Province of Nova Scotia, and JOCELYN PATTERSON
Respondents
REASONS FOR JUDGMENT
Counsel: Anna Marie Butler and Debra Duggan for the appellant
Catherine J. Lunn for the respondent AGNS
Michelle C. Awad for the respondent Patterson
Appeal Heard: January 21, 2002
Judgment Delivered: April 5, 2002
THE COURT: The appeal was allowed in part on the question of apportioning liability as between the appellant and the respondent Patterson (Saunders, J.A. dissenting) . In all other respects, the appeal and cross-appeal are unanimously dismissed.
Saunders, J.A. (Dissenting on the apportionment of liability):
INTRODUCTION
[1] The appellant, Elizabeth Leddicote, was injured on February 21, 1995, when she lost control of the car she was driving in a patch of slush on Highway 101 near the Bedford Bypass/Dartmouth turnoff in Sackville, Nova Scotia. At this location the highway is divided, two lanes for eastbound and two for westbound traffic, separated by a concrete wall. The appellant was proceeding easterly, towards Halifax. Her car fishtailed and slid sideways, thereby blocking the lane in which she was travelling and a portion of the left hand passing lane. Before the appellant’s car came to rest it was struck on the rear driver’s side by a following car operated by the respondent Jocelyn Patterson. The appellant sued both the Province of Nova Scotia and Patterson in negligence, alleging that Department of Highways crews failed to clear the roadway in a timely and effective manner and created a hazard in the way they plowed snow that morning; and Ms. Patterson for failing to keep a safe distance and for driving too fast, such that she was unable to avoid striking the appellant.
[2] The case was tried by Justice Gordon A. Tidman of the Nova Scotia Supreme Court who, after a ten-day trial, dismissed the appellant’s action against the province and divided liability between the appellant and the respondent Patterson, 90/10 in favour of Patterson.
[3] In assessing the appellant’s general damages Justice Tidman found that as a result of Ms. Leddicote’s injuries she suffers from chronic pain syndrome or fibromyalgia. He assessed her general damages for pain and suffering and loss of enjoyment of life in the amount of $30,000.00. No appeal is taken from that particular award. To this sum was added the amount of $4,195.00, representing 15 weeks’ loss of income, after first deducting certain Section B benefits the appellant received from her automobile insurer during her time off work. When the total damages were reduced by 90% in accordance with the trial judge’s findings on liability, the appellant was left with net damages payable to her by the respondent Patterson in the amount of $3,499.50. There were, as well, significant costs awards made against the appellant in favour of the respondents.
[4] In her factum and oral submissions the appellant alleges error on the part of the trial judge in:
1. Assessing liability 90% against the appellant and 10% against the respondent Patterson;
2. Dismissing the action against the Attorney General of Nova Scotia by failing to properly assess the evidence and ignoring compelling, pertinent evidence of fault;
3. Misinterpreting and misapplying the decision of this court in Carter v. Anderson (1998), 168 N.S.R. (2d) 297, thereby resulting in a dismissal of the appellant’s claim for a loss of valuable services;
4. Failing to properly assess the evidence and ignoring compelling, pertinent evidence related to the issue of loss of income, resulting in a dismissal of the appellant’s claim for loss of income;
5. Awarding excessive costs after mistakenly basing “the amount involved” on the damages claimed as opposed to the compensation actually awarded.
[5] A cross-appeal was filed by the respondent Patterson raising a single issue, that the trial judge erred in ordering pre-judgment interest compounded annually on the general damages awarded to the appellant. Patterson says that the interest awarded ought to have been simple interest. On this issue Patterson’s cross-appeal is opposed by the appellant. The respondent Province of Nova Scotia takes no position.
[6] I have concluded that both the appeal and the cross-appeal ought to be dismissed. In the following reasons I will address each ground of appeal separately.
Assessment of Liability 90% as against the appellant and 10% as against the respondent Patterson.
[7] The appellant lifts a phrase from the trial judge’s decision and attempts to characterize it as proof of an error of law on his part. After a concise and thorough review of the evidence and making certain critical findings of fact, the trial judge went on to explain his assessment of liability as follows:
...I find as defence counsel submit, that the collision was caused primarily by the plaintiff losing control of her vehicle. She lost control as a result of driving her vehicle into a slush patch where she skidded and while sideways partially blocked both eastbound lanes so that the defendant Patterson was unable to pass or avoid striking her vehicle.
Although the defendant Patterson did all she could in trying to avoid the plaintiff after being placed in the agony of collision position she must bear part of the responsibility because, in my view, she was travelling too closely behind the plaintiff’s vehicle considering the slippery condition of the highway at the time. Although 6 car lengths may be a safe following distance under normal road conditions, particularly on a 4 lane highway, it was not, in my view, a safe distance under the slippery road conditions existing at the time. On the plaintiff’s part, the slush patch was clearly visible to her in sufficient time to have avoided striking it. She says that she saw it but did not think it would be a problem for her to drive through. The accident could have been avoided if she had either slowed earlier or driven to the left of the slush patch since the left hand lane was clear of obstruction.
Mr. Wagner points out that the Towriss vehicle stopped in time to avoid colliding with the front vehicles. However, the Towriss vehicle had the advantage of a greater stopping distance since it was 2 cars behind the plaintiff’s vehicle. Although I agree with Mr. Wagner’s submission as to the heavy onus on the following vehicle, I am of the view that the greater portion of the blame for the collision rests with the plaintiff for failing to maintain control of her vehicle and placing the defendant’s vehicle in jeopardy by blocking both lanes of traffic so the defendant could not safely pass.
I would assess the defendant Patterson’s liability at 10%. (underlining mine)
[8] The appellant contends that the trial judge’s use of the words “the agony of collision”, which I have underlined, signals a misapplication of the doctrine of agony of collision to the facts of this case. Citing relevant authorities, the appellant argues that the doctrine of agony of collision arises in circumstances where a party, often a motorist, is suddenly confronted by an emergency situation of someone else’s making, which the party is then unable to avoid. The doctrine comes to the assistance of such a party who may happen to make a wrong decision in attempting to avoid the hazard provided that the party confronted by the emergency has not been negligent. Here, so the appellant argues, having found some degree of negligence on Patterson’s part in following too closely behind Leddicote, she cannot avail herself of the doctrine of agony of collision so as to shield herself from culpability.
[9] In my respectful view, the appellant’s submission is incorrect. A proper reading of the decision makes it clear that Justice Tidman never applied or relied upon the doctrine. Had he done so it would have obviously resulted in the appellant’s claim being dismissed in its entirety. The phrase “the agony of collision” within the context of the trial judge’s reasons, was nothing more than an unfortunate choice of words easily replaced by, for example, “an emergency situation”.
[10] The only other “error” of law raised by the appellant in her written and oral submissions, and which constitute the balance of her argument on this ground, relate to the trial judge’s findings of fact, which findings in turn led to his apportionment of liability and his assessment of damages. The limited scope of appellate review in such circumstances was considered by Flinn, J.A. writing for this court in Parsons v. Parker (1997), 160 N.S.R., (2d) 321 at ¶18:
[T]he standard of review which applies is as set out by McLachlin J. in Toneguzzo-Norvell (Guardian Ad Litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 (S.C.C.). Justice McLachlin said at p. 121-122:
It is 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: see P.(D.) V. S.(C,), [1993] 4 S.C.R. 141, at pp. 188-189 (per L’Heureux-Dube), and all cases cited therein, as well as Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at pp. 388089 (per Wilson, J.), and Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802 at pp. 806-808 (per Ritchie J.). A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal.
[11] More recently, Chief Justice Glube concisely restated the principles engaged in a case such as this in Fraser v. Hunter Estate (2000), 184 N.S.R. (2d) 217 at ¶8-10:
The parties agree that the standard of review on appeals involving findings of fact, apportionment of fault and an assessment of damages is as set out in Morrow v. Barnhill (Ritchie) Contracting Ltd., Pynn and Teed (1988), 86 N.S.R. (2d) 444 at p.447:
Findings of fact stand unless there was a palpable and overriding error on the part of the trial judge: Stein Estate v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R. (3d) 1.
An apportionment of fault is only to be altered in very strong and exceptional circumstances: Sparks v. Thompson (1974), 1 N.R. 387; 6 N.S.R. (2d) 481 (S.C.C.).
An assessment of damages stands unless the trial judge has applied a wrong principle of law or has arrived at an amount so inordinately high or low as to be a wholly erroneous estimate: Nance v. B. C. Electric Railway Company Ltd., [1951] A.C. 601.
The first and third issues on the cross-appeal relate to findings of fact upon which the trial judge determined liability. It is not the function of a court of appeal to retry the case. I have reviewed the extensive record and heard the able arguments of counsel. There is sufficient evidence accepted by the trial judge to support his findings of fact and credibility and the conclusions he reached. There is no error of law or palpable and overriding error in the trial judge’s determination of liability and no strong and exceptional circumstances to warrant altering the finding of fault against Mr. Hunter.
[12] In Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, Bastarache, J. considered the limits to appellate review, both with respect to a trial judge’s finding of negligence based upon breach of the standard of care, and the apportionment of liability. He noted at ¶42:
The apportionment of liability is primarily a matter within the province of the trial judge and appellate courts should not interfere with a trial judge’s apportionment unless there is demonstrable error in his appreciation of the facts or applicable legal principles. No such demonstrable error was shown in this case and the trial judge’s apportionment of fault should be restored. Further, prejudgment interest at the rate prescribed by the trial judge is also restored, there being no reason to interfere with his discretion under the Courts of Justice Act.
Further, he noted at ¶57:
In examining whether the inspection was reasonable in the circumstances, we must bear in mind that the determination of whether a defendant has met the standard of care required in the circumstances is a question of fact. While it is open to an appeal court to find that a trial judge applied the wrong standard of care, once it is determined that he or she applied the correct standard, an appeal court can reverse a trial judge’s findings with respect to whether that standard was met by the defendant only if it can be established that he or she made some palpable and overriding error which affected the assessment of the facts.
[13] Most recently, in the case of Housen v. Nikolaisen, [2002] S.C.J. No. 31, judgment released March 28, 2002, the Supreme Court divided 5:4 in allowing the appeal and restoring the judgment of the trial judge. Iacobucci and Major, JJ, writing for the majority, joined by the Chief Justice and Justices L'Heureux-Dubé, and Arbour, began their reasons with the following direction:
1. Introduction
¶ 1 A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge's reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge's decision if there was some evidence upon which he or she could have relied to reach that conclusion.
¶ 2 Authority for this abounds particularly in appellate courts in Canada and abroad (see Gottardo Properties (Dome) Inc. v. Toronto (City) (1998), 162 D.L.R. (4th) 574 (Ont. C.A.); Schwartz v. Canada, [1996] 1 S.C.R. 254; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60). In addition scholars, national and international, endorse it (see C. A. Wright in "The Doubtful Omniscience of Appellate Courts" (1957), 41 Minn. L. Rev. 751, at p. 780; and the Honourable R. P. Kerans in Standards of Review Employed by Appellate Courts (1994); and American Bar Association, Judicial Administration Division, Standards Relating to Appellate Courts (1995), at pp. 24-25).
¶ 3 The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:
The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.
¶ 4 While the theory has acceptance, consistency in its application is missing. The foundation of the principle is as sound today as 100 years ago. It is premised on the notion that finality is an important aim of litigation. There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.
¶ 5 What is palpable error? The New Oxford Dictionary of English (1998) defines "palpable" as "clear to the mind or plain to see" (p. 1337). The Cambridge International Dictionary of English (1996) describes it as "so obvious that it can easily be seen or known" (p. 1020). Random House Dictionary of the English Language (2nd ed. 1987) defines it as "readily or plainly seen" (p. 1399)
¶ 6 The common element in each of these definitions is that palpable is plainly seen. Applying that to this appeal, in order for the Saskatchewan Court of Appeal to reverse the trial judge the "palpable and overriding" error of fact found by Cameron J.A. must be plainly seen. As we will discuss, we do not think that test has been met.
[14] Having considered all of the evidence in this case, I am satisfied there is no basis for interfering with Justice Tidman’s conclusions on matters of fact. I am not persuaded that in apportioning liability as he did, the learned trial judge erred in ways that are plainly seen. The appellant has failed to demonstrate any palpable or overriding error, or that Tidman, J. ignored conclusive or relevant evidence, or misunderstood the evidence, or drew erroneous conclusions from it.
[15] Before assessing liability Justice Tidman carefully reviewed the evidence of each of the parties and witnesses to the accident. Each had described how the weather and road conditions had changed over the course of the morning. Snow that had fallen earlier had been plowed away, leaving much of Highway 101 near the accident scene as wet, bare pavement. The appellant was proceeding easterly in the right hand lane following behind an oil tanker truck about 600-700 feet ahead. She saw the truck’s brake lights come on and decided to gear down and decelerate the speed of her own car to approximately 40-50 kph. As she started to slow down she noticed what she described as a pile of snow ahead, in the right hand lane. She concluded she would not have any trouble driving through it and elected to do so rather than move into the left hand lane where the pavement was clear.
[16] The appellant’s description of what lay on the highway was in marked contrast to every other witness. She said it was “a pile of snow ... jutting out into the right hand lane... about two to three feet deep ...”. Evidently the trial judge preferred the description given by the respondent Patterson, as well as a father and son Leslie and Jamie Towriss travelling in a truck behind Patterson, leading Justice Tidman to find:
The patch has been variously described but I accept that it consisted of slush 2-4 inches in depth extending from the plaintiff’s right edge of the highway almost to the centre line dividing the two eastbound lanes and between 1 and 2 car lengths in width.
[17] While driving through this patch of slush, the appellant lost control of her vehicle, prompting the trial judge to conclude:
...the collision was caused primarily by the plaintiff losing control of her vehicle. She lost control as a result of driving her vehicle into a slush patch where she skidded and while sideways partially blocked both eastbound lanes so that the defendant Patterson was unable to pass or avoid striking her vehicle.
[18] The respondent, Ms. Patterson, testified that she had left Auburn, Nova Scotia around 10:00 a.m. and proceeded toward Halifax on Highway 101. She said it was a real winter’s day with snow plow crews working all over the Valley. She described the roads as being snow covered but that when she arrived in Sackville the road surface turned wet and slushy. She had not observed any ice or slippery conditions and was comfortable maintaining a speed between 40-80 k.p.h.. She first saw the appellant’s vehicle in the Sackville area. She had also noticed the truck driven by Mr. Towriss behind her. All three vehicles were travelling in the right hand lane and, as found by the trial judge, each was equidistant from the other, with 100 feet separating Towriss from Patterson and another 100 feet between Patterson and Leddicote. The left lane was free of other vehicular traffic.
[19] Ms. Patterson testified that both lanes had been plowed of snow. She did not see the slush patch before the collision because her view of that area was obstructed by the Leddicote vehicle. As soon as she saw Leddicote lose control in the slush, Patterson reduced her own speed by taking her foot off the accelerator and braking. Patterson’s initial thought was that Leddicote was going to regain control of her car. When that didn’t happen, she then observed Leddicote lose total control of the car, ending up completely sideways on the road, blocking three-quarters of the right hand lane and one-quarter of the left hand lane. Patterson tried to avoid it by veering to the right, thinking she might be able to clear the highway and make it safely down an embankment. Her car struck the rear driver’s side of the appellant’s car. Ms. Patterson’s only injuries were stiffness and bruising which cleared up in a few days.
[20] Some might think it curious that in assigning blame the trial judge only assessed the defendant Patterson with 10% liability. A greater apportionment against her might have been reasonable. Nonetheless, an apportionment of fault will only be set aside in very strong and exceptional circumstances. I see no basis for interference in this case. In dividing liability as he did I am not persuaded that the trial judge ignored or misunderstood persuasive and critical evidence which led to any palpable or overriding error.
[21] It was entirely within the trial judge’s purview to decide, as he did, that primary responsibility for this mishap lay with the appellant. The trial judge found as a fact that Leddicote saw the patch of slush, clearly visible ahead of her, in sufficient time to have avoided striking it. Further, she perceived that she could drive her small car through it and chose to do so even though, as the trial judge found, the accident could have been entirely avoided had she either slowed down or opted to move into the left hand lane which was clear of any obstruction. Instead, having chosen to drive through it, she failed to maintain control of her vehicle thereby placing Patterson in jeopardy by partially blocking both lanes of traffic, and preventing Patterson from passing or avoiding striking her vehicle. It seems to me that these were all legitimate reasons, well supported by the evidence, for the trial judge to have assigned most of the responsibility for this mishap to the appellant. I see no basis for disturbing his assigning only 10% responsibility to Patterson for travelling too closely behind Leddicote. As he put it:
Although 6 car lengths may be a safe following distance under normal road conditions, particularly on a four-lane highway, it was not, in my view, a safe distance under the slippery road conditions existing at the time.
[22] In attacking the trial judge’s apportionment of liability the appellant points to his finding that the same distance - that is 100 feet - separated the Towriss truck from Patterson and the Patterson car from the appellant’s. Thus, so the appellant argues, the fact that the Towrisses were able to avoid the collision suggests that Patterson ought to have been apportioned a much greater percentage of liability for striking the appellant’s car.
[23] I disagree. This same argument was advanced by counsel for the appellant at trial and I see nothing wrong with the manner in which the trial judge disposed of it:
Mr. Wagner points out that the Towriss vehicle stopped in time to avoid colliding with the front vehicles. However, the Towriss vehicle had the advantage of a greater stopping distance since it was two cars behind the plaintiff’s vehicle.
This comment by the trial judge does not support a claim that he misapprehended the evidence or erroneously concluded that the Towrisses had more time, measured in seconds, to stop before colliding with either or both vehicles ahead. Common sense would dictate, as the trial judge found, that the Towrisses were in a position to see the mishap unfold ahead of them and further, had not themselves encountered any slush in their lane of travel. Compared to Patterson the Towrisses did, as the trial judge observed, have an advantage of a greater stopping distance since they were not immediately following behind the appellant. All of these circumstances would, in my opinion, justify the trial judge inferring that the Towrisses had a better opportunity to respond than did Patterson.
[24] I find that the cases relied upon by the appellant are easily distinguishable. For example, the appellant placed considerable reliance upon Sterling v. Dykens (1994), 128 N.S.R. (2d) 125 (S.C.); and Cawson v. Quandt (1999), 13 D.C.T.C. 204 (S.C.) 12 and [2001] 154 B.C.A.C. 1(C.A.) 13. In Sterling the trial judge apportioned liability 90% against the defendant (following) motorist and 10% against the plaintiff. However, in that case the plaintiff had regained control and straightened his truck out, moving it to the right hand side of the highway and practically to a stop with its right wheels on the gravel shoulder when he was rear ended by the defendant’s car. Further, the trial judge in that case found that the defendant did not apply her brakes after first seeing the plaintiff lose control of the truck. That situation is entirely different from the circumstances here where the trial judge found that the appellant lost control of her vehicle after fishtailing in a patch of slush, slid sideways down the highway straddling both lanes, thereby depriving Patterson of any reasonable opportunity to avoid the impact.
[25] Similarly, in Cawson the circumstances were completely different. A collision occurred between a motorcycle and a truck in darkness at a curve on a highway after the defendant had stopped to allow deer to cross. The two motorists gave entirely different accounts of the accident and there were no independent witnesses to the actual collision. I do not find any of the considerations in that case helpful in disposing of this one.
Dismissal of the appellant’s action against the Attorney General of Nova Scotia
[26] The appellant asserts that the trial judge erred in law in dismissing her action against the province by failing to properly assess the evidence and by ignoring compelling, pertinent evidence of fault.
[27] Here, as noted earlier, the role of an appeal court in reviewing the trial judge’s findings of facts is very narrowly defined. We have no authority to retry the case. We will only interfere if the trial judge has made a manifest error, has ignored or misunderstood relevant critical evidence or has drawn erroneous conclusions from it. A court of appeal is not entitled to interfere simply because it takes a different view of the evidence. Finding facts and drawing inferences from those facts is the responsibility of the trial judge, not an appellate court. See, for example, Tonneguzzo-Norvel et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; Minister of National Revenue v. Schwartz (1996), 193 N.R. 241; Québec v. Syndicat national des employés de l’Hôpital St-Ferdinand (1996), 202 N.R. 321; Pye v. MacLean (1996), 150 N.S.R. (2d) 159; and White v. Slawter (1996), 149 N.S.R. (2d) 321.
[28] To better understand this ground of appeal, it would be helpful to describe the location on the highway where the appellant lost control of her vehicle in the slush. She was travelling in a generally easterly direction towards Halifax on Highway 101, which at all material times was a four-lane highway, with two lanes in each direction separated by a four-foot high concrete divider, described by some as a jersey barrier. At approximately the place at which the accident occurred, traffic proceeding towards Halifax may take Exit F, an off ramp to the right, marked by signage as the turnoff for Dartmouth. The edge of the exit ramp and the right hand edge of the two eastbound lanes converge in a “V” described as the “gore area”. A photographic blow up, marked as Exhibit No. 7, best depicts this area. At trial it was the theory of the appellant that the province’s snow plow operator that morning, Murray Slaunwhite, breached departmental policy by angling the blade of his snow plow “to the left” which pushed the snow from the left lane of the ramp into and across the gore area, thereby creating the slush patch in the appellant’s lane.
[29] The appellant argues that the trial judge erred in absolving the province of liability. She says the actions of the snow plow operator failed to comply with Department of Transportation snow removal policy, amounting to a breach of the duty of care owed by the province to motorists using its highways.
[30] In my view, there is no merit to the appellant’s submissions, either in law or on the evidence before the court.
[31] The existence of a duty of care in circumstances such as these is determined by the two-step test enunciated in Anns v. Martin London Borough Council [1978] A.C. 728 (H.L.), reaffirmed by the Supreme Court of Canada in Ryan v. Victoria (City) (1999), 168 D.L.R. (4th) 513 and most recently applied in Ingles, supra. The principles from such cases were understood and correctly invoked by the trial judge. He framed three questions:
1. Did the Province owe a duty of care to the plaintiff?
2. If so, what was the standard of care?
3. Did the Province breach that standard?
He found that the province owed a duty of care to Ms. Leddicote. In addressing the second question, Justice Tidman properly observed:
The courts have made it clear that the province has a duty to take reasonable care in maintaining public highways to best ensure the safety of the driving public. The standard is not so rigid as to hold the province to be a virtual insurer against harm to the public using the highways.
[32] Tidman, J. then addressed the third question, asking himself whether the province had breached that standard of care. He accurately summarized the evidence given by Mr. Hugh Burns, a departmental operating supervisor responsible for the maintenance of the highways in the district in which this portion of Highway 101 was situate, and Mr. Murray Slaunwhite, the snow plow operator on the day in question. After reviewing their testimony and recognizing the submission put forward by appellant’s counsel, Justice Tidman made several critical findings of fact, all plainly supported by the considerable documentary and testimonial evidence presented on the subject.
Mr. Slaunwhite gave evidence that prior to the accident on the day of the storm he had plowed and salted, in quantities exceeding those set out by departmental policy manuals, both eastbound lanes of Highway 101 in the Sackville area. From the evidence of Mr. Towriss Sr. that some snow may have been pushed into the core (sic) area between the Dartmouth exit and Highway 101 contrary to departmental policy, Mr. Wagner submits that this may have contributed to the cause of the accident by contributing to the size of the slush patch on the highway. Departmental policy, according to Mr. Burns and Mr. Slaunwhite, does not allow plow operators to back up on Highway 101 to clear any snow that may have been pushed aside by the plow blades and left on the highway. Mr. Slaunwhite says during initial plowing some snow is usually left on the highway in the various core areas and is eventually cleared by subsequent snow plowing. Based on the evidence of Messrs. Burns and Slaunwhite, I find that the Department of Transportation had in effect a reasonable policy to ensure that the highways, and particularly Highway 101, are properly cleared of snow and ice during and after storms. I also find that on the day in question that policy was adequately carried out by Mr. Slaunwhite. It may be that snow was left on the highway that formed the slush patch in issue or it may be that the slush accumulated in the area as a result of automotive traffic on the highway. In either event it is not unreasonable to expect to find various accumulations of snow or slush on the highway during and after snow storms and in this case immediately after a snow storm.
Accordingly, I find no negligence on the part of the province and would dismiss the action against the Attorney General of Nova Scotia.
Justice Tidman made no mistake in his application of the law or his understanding of the evidence.
[33] Further, the hypothesis advanced by the appellant is entirely speculative. She asserts that because Mr. Slaunwhite, when plowing the left lane of the Bedford bypass, had a practice in 1995 of plowing the snow to the “left” in order to push it down over the embankment in between Highway 101 and the exit ramp, this somehow caused the snow to be pushed across the ditch and across the gore area and out into the eastbound lane of Highway 101. Appellant’s counsel says “it is more probable than not” that this is how the slush patch came to be “created” in the appellant’s lane.
[34] There is nothing in the record to support the appellant’s hypothesis. There is no evidence that snow was plowed or pushed across the bank and beyond the “V” gore area into the eastbound lane. Mr. Slaunwhite testified that he did not angle the blade on his plow to the left until he came up to where the “V” had “widened out” and then pushed the snow “down over into the bank”. Mr. Slaunwhite also denied under cross-examination that any snow discharged from the exit ramp to the left would somehow go “over into the southbound 101 Highway lane leading into Bedford Basin”. Accordingly, there was no evidence before the trial judge to find on a balance of probabilities that any part of Mr. Slaunwhite’s snow plowing on February 21, 1995, “caused a slush patch to form” in the right hand side eastbound lane of Highway 101.
[35] Based on the evidence before him the trial judge was entitled to find, as he did, that the province’s duty to plow and salt the roads was reasonably carried out by its employees on the day in question. The appellant has failed to persuade me that the judge was wrong to dismiss the action against the respondent Attorney General.
Dismissal of the Appellant’s Claim for Loss of Valuable Services
[36] The appellant claimed approximately $38,000 for loss of personal services which she said would be required to pay the cost of housekeeping services in the future. This claim was based upon projections made by an actuary retained by the appellant, whose report was before the court.
[37] To place this ground of appeal and the claim on which it is based in context, it will be useful to review briefly her injuries, the treatment received and the judge’s conclusions with respect to her long-term prognosis.
[38] Immediately following the collision Ms. Leddicote’s injuries were assessed. Her right arm, shoulder, spine, hips, chest and neck were sore. X-rays and CT scans taken after the accident revealed no abnormalities. The appellant testified that since the accident the injury to her right shoulder gave her the most difficulty and that at the time of the trial she still suffered from severe headaches which radiated from the back of her neck to the top of her spine. She described difficulty in sleeping. She experienced anxiety and emotional attacks almost immediately after the accident. She was afraid to drive. She suffered from anxiety attacks which continued for two years. She said that six months after the accident she started to have bulimia nervosa and anorexia experiences which continue to trouble her.
[39] She was treated on an ongoing basis by her family physician, undertook physiotherapy and similar treatments and consulted with a number of experts, including specialists in psychiatry, physical medicine and rehabilitation.
[40] Dr. Claire O’Donovan, a psychiatrist at the Camp Hill Medical Centre, gave evidence on behalf of the appellant. She testified that the appellant had a history of emotional disorders pre-dating the automobile accident, including binge eating and purging followed by an anorexic period. Dr. O’Donovan said that immediately following the accident Ms. Leddicote had post-traumatic stress symptoms, including anxiety which had largely settled by the time she saw her in December, 1996, some twenty-two months post-accident. After carefully considering the evidence, the trial judge concluded:
From the evidence of the plaintiff and Dr. O’Donovan, mental difficulties and eating disorders described obviously pre-dated the motor vehicle accident. However, the evidence also indicates that those difficulties were exacerbated to some degree as a result of the motor vehicle accident.
[41] After applying the Supreme Court’s judgment in Athey v. Leonati, [1997] 1 W.W.R. 97, Tidman, J. stated:
Accordingly, I shall, in assessing general damages, consider that the injuries received in the accident did, in fact, have a debilitating affect on the plaintiff because of her innate emotional inability to cope with problems as well as could a person without that type of mental fragility.
[42] Ms. Leddicote was also seen by Dr. Robert K. Mahar, a specialist in physical medicine and rehabilitation, who gave evidence on her behalf. Dr. Mahar diagnosed the appellant as suffering from fibromyalgia. The trial judge accepted this diagnosis and said:
On the basis of all of the evidence, I have concluded that as a result of the injuries suffered in the motor vehicle accident, the plaintiff is suffering from chronic pain syndrome which Dr. Mahar describes as fibromyalgia.
[43] The respondents had urged the trial judge to reduce any award on the basis that the appellant had failed to mitigate her own damages, in particular by failing to heed certain medical advice concerning medications and aerobic exercise. While noting that he was “particularly surprised” that the appellant did not follow up on a suggestion from one of the treating physicians to make use of a particular device in pain relief, the trial judge was not prepared to “decrease an award by a specific amount to account for that circumstance.” Nonetheless, he was prepared to:
...conclude from it, in arriving at the amount of an award, that the degree of the plaintiff’s present suffering is not so extreme as her evidence would otherwise indicate.
Upon considering all the evidence, including that relating to the exacerbation of pre-existing psychological difficulties, and failure to mitigate as related, I would assess general damages for pain and suffering and loss of enjoyment of life in the amount of $30,000.
[44] As noted earlier in these reasons, no appeal is taken from the amount of $30,000 awarded as general damages.
[45] Against that background and those specific findings of fact, I will now consider the appellant’s complaint that the trial judge erred in dismissing her claim for loss of valuable services and, further, in dismissing her claim for loss of future income.
[46] The appellant repeats the same argument made at trial that on the basis of this court’s judgment in Carter v. Anderson (1998), 168 N.S.R. (2d) 297 she was entitled to receive, under a separate head of damages, compensation for her loss of housekeeping capacity. The trial judge was not persuaded by the appellant’s submission, finding that the facts of her case were:
...not analogous to those in Carter. In Carter there was a realistic expectation that the plaintiff would be required to pay for housekeeping services she could no longer perform because of her injuries. As Ms. Awad has argued, and as Roscoe, J.A. stated in Carter, a claim for the cost of future personal services is based on the concept of direct economic loss. In other words, there must be a probability of out-of-pocket expenditures for doing necessary household chores, or, at least of someone providing that ongoing service which would otherwise require an expenditure by the plaintiff.
In this case there is no reasonable expectation that housekeeping or personal services will have to be paid for in the future due to the plaintiff’s injuries. The plaintiff has not paid any one to do household chores to date and there is no evidence to suggest that she will be unable to perform such chores in the future. Indeed, the plaintiff’s roommate, who has no physical impairment, says that the housekeeping work that is done in their apartment is done by the plaintiff and not by him.
It may be, and probably will be the case, that the performance of some household chores by the plaintiff will be affected by her injuries. However, I will take into consideration that circumstance in determining the amount of a general damage award for pain and suffering and loss of enjoyment of life.
In the circumstances outlined I find nothing to justify a separate category award for the loss of valuable services. Consequently, no award is made for loss of those services. (Appeal book pp. 32-33)
[47] I agree with the trial judge’s conclusion that the circumstances presented in Carter which justified a separate award to the claimant in that case are materially different from the situation here. In Carter the appellant suffered severe injuries to her cervical, thoracic and lumbar spine, to her right foot and to her anterior and posterior chest wall. She was the mother of four children, the eldest 12 years of age. She was employed as an office manager and at the time of the accident was on maternity leave after the birth of her third child. As a result of the accident, when she did return to work she was only able to work part-time, initially two hours each day. In her reasons Justice Roscoe commented:
¶¶ 10 The trial judge accepted the evidence presented by and on behalf of the appellant that she is unable to perform some of the housekeeping activities for which she had previously assumed responsibility. Mrs. Carter said that prior to the accident she had 99% of the household responsibilities. She testified that since the accident her husband, with the assistance of the oldest child, had taken over several tasks from her, including: most of the cleaning, the vacuuming, the mopping, the tidying up, putting the laundry away, the lawn mowing, the annual spring cleaning, and the weekend bathroom and floor scrubbing.
¶¶ 11 Mr. Carter estimated that he now spends one and half hours daily on household chores previously done by his wife and on the weekends he works all morning cleaning the house.
[48] These facts as found by the trial judge and emphasized by this court in Carter are strikingly different than the evidence proffered by Ms. Leddicote in this case. With respect, her testimony and the evidence given by others was hardly sufficient to persuade the trial judge that the appellant’s ability to be a homemaker or perform housekeeping tasks had been impaired. Justification for seeking compensation for loss of housekeeping services is dependent upon the evidence mustered to prove it. Tidman, J. observed:
...there is no evidence to suggest that she will be unable to perform such chores in the future.
I agree with the trial judge’s assessment.
[49] It should be remembered that with a claim for what has come to be described as “lost housekeeping services”, one is not compensating for physical injury or resulting pain and suffering. Rather, the inquiry is focused on the repercussions of such injury, that is to say whether their effect has impaired the claimant’s ability to complete the tasks and fulfill the responsibilities undertaken around the home before the accident. In her reasons in Carter Justice Roscoe approved the approach taken by Vancise, J.A. for the Saskatchewan Court of Appeal in Fobel v. Dean (1991), 93 Sask. R.103; 4 W.A.C. 103; 83 D.L.R. (4th) 385 (C.A.) (leave to appeal to the S.C.C. refused, [1992] 1 S.C.R. VII; 138 NR 404; 97 Sask. R. 240; 12W.A.C. 240) wherein Vancise, J.A. focused on the impact of the injuries upon the claimant’s skills and functions around the household:
...compensation for the increased difficulties encountered in performing her housekeeping duties pre-trial...her housekeeping capacity had been impaired and ... she suffered damage. The evidence is uncontradicted that Mrs. Fobel has struggled to do the housekeeping without any material assistance.(At p. 402)
This was the proper focus emphasized by Roscoe, J.A. in her reasons:
26 In my opinion, the modern advancement of this area of the law of damages, which is premised on the concept of direct economic loss of the plaintiff whose ability or capacity to perform homemaking or housekeeping tasks has been impaired, should be acknowledged and accepted in Nova Scotia. Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past. (At p. 305) (Underlining mine)
[50] The question becomes to what extent, if at all, have the injuries impaired the claimant’s ability to fulfill homemaking duties in the future? Thus, in order to sustain a claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered a direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person’s physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment. For an excellent and comprehensive analysis of this subject see the paper presented by W. Augustus Richardson to the Nova Scotia CLE Society in January, 2001.
[51] I should note parenthetically that while the trial judge may (as here) choose to consider whether or not the claimant has paid anyone prior to trial to complete such household chores, such is not determinative as to whether or not compensation ought to be paid for lost housekeeping services. As noted in Carter and more recently by Oland, J.A. writing for this court in Miller v. Folkertsma Farms Ltd. et al., [2001] NSCA129, loss of capacity to perform homemaking or housekeeping tasks is to be compensated separately whether or not replacement help has been paid for in the past.
[52] While it is true that in the few months after the accident Ms. Leddicote’s brother helped out with household chores in the home they shared in Middleton, it is also true that by the time of trial the appellant had changed accommodations more than once and had by that time lived for two and a half years with her boyfriend, Matthew Bell, in a one-bedroom Halifax apartment. Any fair reading of his testimony supports the trial judge’s conclusion noted earlier in these reasons:
There is no evidence to suggest that she will be unable to perform such chores in the future. Indeed, the plaintiff’s roommate who has no physical impairment says that the housekeeping work that is done in their apartment is done by the plaintiff and not by him.
Having carefully reviewed the entire record, I respectfully agree with the trial judge’s conclusion that the appellant simply failed to prove to the required standard any substantial risk that her ability to handle the household tasks incidental to maintaining a home were impaired, thereby entitling her to financial compensation for the loss.
Dismissal of the Appellant’s Claim for Loss of Income
[53] This head of damage has been ascribed various labels, including “loss of future income”, “future income loss”, “loss of working capacity”, “loss of earnings”, “loss of earning capacity”, and “loss of ability to earn”. The differences are not solely terminological.
The linguistic variety is partly generated by an uncertainty as to the logic and theory underpinning the head. The notion of “loss of working capacity” helps to solve that uncertainty. Responding to the compensatory principle, new sub-heads of pecuniary loss have now been recognized which fall within the ambit of this general head of damages. They reveal that a plaintiff’s loss of capacity to work can have diverse consequences, not necessarily involving the loss of actual earnings. These consequences are embraced by three sub-heads: (1) loss of earnings; (2) loss of homemaking capacity; and (3) loss of shared family income. Although once in vogue, the view that the rubic “loss of earning capacity” captures the underpinning of this head of damages is now largely discredited. In its place are the above sub-heads of loss of working capacity which focus on the actual financial losses which may flow from impairment of ability to work. (Ken Cooper-Stephenson, Personal Injury Damages in Canada (2nd Ed.) Carswell: 1996 at p. 202)
[54] As the authors point out, since this head of damages is pecuniary in nature, the principle of full compensation applies. Actuarial assessment may be applied which will involve not only the use of detailed mathematical calculations, but also actuarial and statistical evidence as a tool for future prediction. Ibid at p. 203.
[55] In Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3rd) 452 at 469, Dickson, J. (as he then was) framed the question:
What sort of career would the accident victim have had?... It is not loss of earnings but, rather, loss of earning capacity of which compensation must be made...A capital asset has been lost: what was its value?
[56] In that one is now considering compensation for future possibilities or chances the evaluation is necessarily a speculative exercise. When estimating what will or might have occurred in the future - in other words, an analysis of the loss of chance - the proper approach was most recently stated by the Supreme Court of Canada in Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 204 D.L.R. (4th) 513 at 540, in which the court adopted the statement from Halsbury’s, Vol. 12, 4th ed. , para. 1137:
[85] While some of these factors were noted by the trial judge, they were not integrated into his calculation of loss of profit. They ought to have been. The correct principle is stated in 12 Hals., 4th ed., at p. 437:
1137. Possibilities, probabilities and chances. Whilst issues of fact relating to liability must be decided on the balance of probability, the law of damages is concerned with evaluating, in terms of money, future possibilities and chances. In assessing damages which depend on the court’s view as to what will happen in the future, or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.
[57] This same approach to evaluating and compensating for loss of chance was applied by Davison J. in Gaudet v. Doucet et al. (1991), 101 N.S.R. (2d) 309, approved by this court in Newman (Guardian ad litem of) v. LaMarche [1994] N.S.J. No. 457 at ¶23:
..In seeking damages for future loss, the burden on the plaintiff is not as stringent as that which exist when he attempts to prove losses which occurred in the past. In Mallett v. McMonagle, [1970] A.C. 166, Lord Diplock stated at p. 176:
'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.
This passage received the approval of the Supreme Court of Canada in Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241, and was referred to by our Appeal Division in MacKay v. Rovers, supra, at p. 242."
[58] The analysis to be undertaken when evaluating a claim for loss of earning capacity was explained by Chipman, J.A. writing for this court in Newman, supra, at ¶22-26:
We must keep in mind this is not an award for loss of earnings but as distinct therefrom it is compensation for loss of earning capacity. It is awarded as part of the general damages and unlike an award for loss of earnings, it is not something that can be measured precisely. It could be compensation for a loss which may never in fact occur. All that need be established is that the earning capacity be diminished so that there is a chance that at some time in the future the victim will actually suffer pecuniary loss.
. . .
In making an award for loss of future earning capacity the court must, of necessity, involve itself in considerable guesswork. Indeed, in many cases where there is less than total disability and the loss of earning capacity cannot be calculated on the basis of firm figures, the diminution of earning capacity is compensated for by including it as an element of the non-pecuniary award. See Yang et al v. Dangov et al (1992), 111 N.S.R. (2d) 109 at 126; Armsworthy - Wilson v. Sears Canada Inc. (1994), 128 N.S.R. (2d) 345 at 355.
. . .
I keep in mind the fact that any loss to be sustained by the appellant would occur some time into the future and perhaps never.
[59] It is with these principles in mind that I will now consider this ground of appeal.
[60] To project and quantify this claim the appellant engaged an actuary, Ms. Jessie Shaw Gmeiner. As part of her report, Ms. Gmeiner was asked to compute the appellant’s loss of future earning capacity. As a primary assumption she relied upon the appellant’s “career aspirations of becoming an RCMP officer”. The base pay for a constable in the RCMP, effective April 1, 1999, was $54,007 per annum. At time of trial the appellant was employed on a full-time basis by a chartered bank, earning $12.80 per hour, 40 hours per week, yielding annualized earnings of $26,624. Accordingly, the actuary assumed the appellant would have become an RCMP officer by the present value date and calculated the net annual loss of future earning capacity as $27,383 ($54,007 less $26,624) over the long term. Assuming the appellant would retire at age 60 and applying an appropriate multiplier, the actuary calculated the present value of her future loss of earning capacity as being $568,222.
[61] This and only slightly lesser projections taking into account different contingencies or different retirement dates and multipliers, figured prominently in the demands advanced by the appellant in her written and oral submissions to the trial judge. For example, her pre-trial brief claims under the head of damage “Future Loss of Income”, $100,000 for what is styled as “future loss of earning capacity/competitive advantage”.
[62] The trial judge rejected the appellant’s assertion that the defendants’ negligence ruined her chances of becoming an RCMP officer. While he was prepared to accept the evidence given by the appellant and other witnesses that it had been her lifelong ambition to become a member of the RCMP, the trial judge, after carefully reviewing all of the evidence, concluded:
...that the plaintiff’s inability to join the RCMP cannot be attributed to the injuries she received in the February 21, 1995, motor vehicle accident.
This critical finding of the trial judge was plainly supported by the evidence. In November, 1994, three months before this mishap, she had applied to the RCMP and written its entrance examination. She failed. In May, 1996, approximately fourteen months post-accident, she wrote a second entrance examination. This time she passed the examination but was not invited by the RCMP to continue in the recruitment process towards acceptance as a member. The RCMP staff sergeant who testified at the trial confirmed that the appellant had not applied to rewrite the recruitment examination which she would have to do in order to remain eligible. She could have done so had she wished.
[63] The evidence also disclosed that since the motor vehicle accident she had been employed as a security officer, both with Pinkerton’s and Citadel Security. During that employment she was able to defend herself in a scuffle while arresting shoplifters. The evidence prompted the trial judge to conclude:
The plaintiff has twice attempted to join the RCMP and, on both occasions, she has been unsuccessful. The first attempt preceded the accident, the second followed the accident. The evidence indicates to me that neither of those failures can be attributed to the plaintiff’s injuries suffered in the automobile accident.
Consequently, I find that the plaintiff’s inability to join the RCMP cannot be attributed to the injuries she received in the February 21, 1995, motor vehicle accident. I say so, particularly, since the plaintiff has not made application to join the RCMP since May of 1996, although following that time she has been involved in security work similar to the work she may have been called upon to do had she joined the RCMP. On at least one occasion she had a physical confrontation with one alleged shoplifter, apparently with no physical after effects. It thus appears that the plaintiff’s medical condition has not affected her ability to do that type of work, similar to work she could be called upon to do as a member of the RCMP.
[64] The trial judge went on to canvass the variety of jobs the appellant had successfully held in the years following the mishap, and the glowing reports she had received from her employers, prompting the trial judge to conclude that:
For most of the time since the accident the plaintiff has held two jobs simultaneously, most requiring long periods of standing or sitting and others potentially requiring physical effort in dealing with security situations.
Further, the trial judge accepted the opinion given by Dr. Robert Mahar, the specialist in physical medicine and rehabilitation who had testified on behalf of the plaintiff, saying:
...There is no evidence to indicate that she is at premature risk of an accelerated or exaggerated tendency towards degenerative disc disease or arthritis in any region of her body as a result of the consequences of this accident.
There is no evidence to indicate that her working career will be prematurely curtailed as a result of the consequences of this accident. She will probably continue to experience ongoing pain and there is little evidence to indicate that this will resolve completely with the passage of time. Therefore, the consequence of this would be the ongoing experience of pain...
[65] After accepting this opinion offered by Dr. Mahar, the trial judge concluded:
Based mainly on the plaintiff’s post-accident employment record and Dr. Mahar’s opinion, I am not satisfied that the plaintiff has proved that her injuries caused by the accident have reduced her earning capacity, accordingly I award no damages for Loss of Earning Capacity either past or future.
[66] There is no basis for interfering with the trial judge’s determination. He thoroughly understood the evidence and his conclusion was sound.
[67] In advancing this ground of appeal the appellant emphasizes one answer given by Dr. Eugene Nurse responding to a question put to him by appellant’s counsel on direct examination. This was the exchange:
Q. Okay, and what did you feel that the impact of these symptoms and their diagnosis had upon her ability to function?
A. It had impaired her ability to function in her previous occupation, which was fairly heavy work as a health care worker, and I felt that she, she was unlikely to ever be able to return to that type of work. I didn’t feel that she was unemployable or permanently disabled in terms of other types of work, only that kind of heavy - where it would involve lifting, and a lot of use of the right arm, would probably be denied her.
[68] This so-called impairment in function is relied upon by the appellant as reason enough to justify an award in damages for lost future income. While this particular ground of appeal is characterized as error on the part of the trial judge in ignoring compelling evidence related to “loss of future income”, appellant’s counsel in her factum and in her oral submissions chose to label it as error in failing to award an amount “for loss of earning capacity”. I have already referred to the distinction in the terms as considered in Newman, supra. See as well Webb v. Exide Electronics Ltd. [1999] N.S.J. No. 228 at ¶44ff. (NSCA).
[69] The essence of the appellant’s complaint is that based on the evidence of Dr. Nurse, she is unable to perform any type of work which would involve lifting or repeated use of her right arm, thus in her submission, rendering her “less capable of earning an income from all types of employment.” This, so it is argued, limits the broad range of opportunities available to her before the motor vehicle accident of February, 1995. In the result she says she has become less marketable and less “valuable” as an income earner.
[70] In my respectful view, this argument mistakenly equates “function” with “capacity”.
[71] Properly understood in the circumstances of this case, function should be seen as a physical limitation, whereas capacity is intended to mean an ability to earn income. The two are not synonymous and should not be confused.
[72] Badly broken fingers in a car crash might intuitively lead one to imagine a demonstrable claim for future income loss, were the claimant a potter or a painter or a computer programmer. But such is not a foregone conclusion. Such a claimant may, by the time of trial, have developed other skills enabling the individual to pursue different but gainful, satisfying employment. In such a case it may be difficult to prove any claim for either future loss of income or a diminution of earning capacity.
[73] There was no evidence that the appellant intended to spend her life in the health care industry. On the contrary, her passion was police work. That was her vocational dream at the time of this mishap. By the time of trial the appellant had a five-year post-accident earnings history which the trial judge considered very carefully.
[74] In order to succeed on this ground of appeal the appellant must satisfy me that the trial judge ignored or misapprehended material evidence, leading to palpable, overriding error in his determination of the issue. I am not so persuaded. A review of the trial judge’s reasons confirms that he carefully considered all of the medical and other evidence on this point and, as was his right, simply preferred certain evidence.
[75] The test as enunciated by Chipman, J.A. in Newman, supra is not a terribly difficult onus to overcome. At the end of the day the trial judge was not persuaded that the appellant had established upon the evidence the chance that in the future she will suffer pecuniary loss. His conclusion was reasonable and ought not be disturbed.
[76] Loss of future income, whether measured as a distinct pecuniary loss or as a diminishment of earning capacity factored in as part of general damages, cannot be assessed in a vacuum. Trial judges are expected to consider the medical and other evidence related to the claimant in the context of his or her particular work history and, where appropriate, employment aspirations and prospects. Here, the evidence plainly supported the trial judge’s conclusion that notwithstanding the injuries she suffered in the accident, the appellant was able to secure well paying employment, meriting glowing performance appraisals by her superiors.
[77] Here, based on the record before Justice Tidman, there was no evidence that the appellant’s capacity, that is her ability to earn income, had been impaired. Dr. Nurse’s view point concerned her ability to “function in her previous employment...as a health care worker” (my emphasis). She had not worked in the home care field since the accident. The jobs she had found since the mishap, and for which she was evidently well suited and commended, did not involve the lifting, heavy work and repeated strain described by Dr. Nurse in his testimony. Given the circumstances presented in her case, I find no error in the trial judge’s conclusion that the appellant had failed to prove an entitlement under this head of damage.
Awarded excessive costs after erroneously determining “the amount involved”.
[78] In her factum the appellant submits that the trial judge erred in selecting the amount claimed in her pre-trial brief as being the “amount involved”. This, she argues, resulted in an excessive amount awarded for party-and-party costs. Instead, the appellant submits that the proper amount to be used as the “amount involved” ought to have been the amount of damages actually awarded at the conclusion of the trial.
[79] I disagree. The award of costs is clearly discretionary and will only be disturbed where wrong principles of law have been applied or the decision is so clearly wrong as to amount to a manifest injustice. See, for example, Exco Corp. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R. (2d) 331 (C.A.); Conrad v. Snair (1996), 150 N.S.R. (2d) 214 (C.A.); and Claussen Walters & Associates Ltd. v. Murphy et al., [2002] NSCA 20.
[80] The relevant parts of Civil Procedure Rule 63.04 provide:
63.04(1) Subject to rules 63.06 and 63.10, unless the court otherwise orders, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the “amount involved” shall be determined, for the purposes of the Tariffs, by the court.
(2) In fixing costs, the court may also consider
(a) the amount claimed;
(b) the apportionment of liability;
(c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding;
. . .
(h) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence;
. . .
(j) any other matter relevant to the question of costs.
[81] The introductory comments in the Tariffs for Rule 63 are also relevant:
In these Tariffs, the “amount involved” shall be
(a) where the main issue is a monetary claim which is allowed in whole or in part, an amount to be determined having regard to
(i) the amount allowed;
(ii) the complexity of the proceeding; and
(iii) the importance of the issues;
[82] As Rule 63.04(2)(a) makes clear, the “amount claimed” is a proper consideration when fixing the “amount involved” in an award of party-and-party costs. Based on the record in this case, it certainly seems to me to be a relevant consideration. The plaintiff adduced evidence including expert evidence to support large future loss claims. Difficult issues of negligence and causation were engaged. Each of the defendants was obliged to respond carefully and thoroughly in light of the claims made and positions taken. As an example, the appellant testified that her anxiety problems, including her eating disorder, developed after the accident. Counsel for the respondents were forced to conduct difficult and detailed cross-examinations of the medical witnesses, as well as the appellant herself in order to demonstrate that her assertion was incorrect. So too with her claim for loss of future earnings calculated on a career spent in the RCMP. For respondents’ counsel all of this was time consuming and undoubtedly expensive.
[83] A private investigator was engaged and evidence led with respect to a covert surveillance tape. The trial judge noted the discrepancies between the appellant’s claimed physical limitations and how she appeared on the video tape. It also featured in his assessment of her damage claim.
[84] The trial took ten days to complete. The appeal book replicates the large volume of medical and other documentation. The appellant advanced very serious and substantial claims seeking damages totalling almost $250,000. In all of these circumstances, it would have been entirely appropriate for the trial judge to consider the risk and consequences to the parties in deciding an appropriate “amount involved”. The respondents were obliged to conduct thorough preparations and deal with each witness very carefully in an effort to neutralize, limit or at least qualify the claims put forward by the appellant. To accede to the appellant’s assertion that in this case the “amount involved” ought to be limited to the amount ultimately awarded by the trial judge would effectively penalize the respondents for their successful defence.
[85] As I had occasion to say in Landymore v. Hardy (1992), 112 N.S.R. (2d) 410 (N.S.S.C., T.D.) at ¶24:
...the court should assess the risk to which the successful party was exposed in deciding the “amount involved” ... it is simply to recognize that the trial judge - who has presided and is therefore in the best position to comment on the proceedings - may choose to consider the risk and consequences to the litigants because such factors almost always affect the importance of the issues and will often dictate the complexity of a proceeding. A case that involves damages exceeding $500,000 will obviously generate more activity than one seeking recovery of $12,000. The outcome, in terms of success or failure, will be much more important in the former than in the latter and by virtue of that importance and (typically) complexity, will justify greater expenditures of time and fees.
Those observations are applicable here where after a 10-day trial, having observed the parties, heard the evidence and assessed the positions and arguments advanced by the litigants, the trial judge was well placed to choose the particular factors to be invoked in fixing the “amount involved”. I find no error in his basing the “amount involved” upon the damages claimed by the appellant, nor his ultimate disposition of party-and-party costs.
[86] Before leaving the subject I might add by way of a general observation that in matters before the court, not the least personal injury litigation, one expects that a claimant’s demands for relief are intended to be taken seriously. Putting them forward invites consequences. Having paid close attention to the evidence and the arguments of counsel, a trial judge is well placed to separate the sensible from the unreasonable, the necessary from the unwise. Thus, in an appropriate case, linking the “amount involved” in an award of costs to the claims put forward may be a useful tool in reminding litigants of the financial risks attendant upon suing and losing.
Cross-appeal by the respondent Patterson asking that simple interest be substituted for the compound pre-judgment interest on the general damages awarded to the appellant.
[87] That portion of the trial judge’s decision dealing with pre-judgment interest is not lengthy and I will quote it verbatim:
Ms. Gmeiner has calculated pre-judgment interest on the basis of a weighted average of the interest paid on one year treasury bills since the accident date in accordance with Practise Memorandum No. 7 at 5.21%.
Since, in arriving at the amount of the award for non-pecuniary general damages, I have not taken into account inflationary factors, I shall allow pre-judgment interest at the rate of 5.21% on the award of non-pecuniary general damages from the date of the accident to the date of the order for judgment. I would also allow the annual compounding of pre-judgment interest from the date of the accident to the date of the order. Mr. Wagner has claimed compounded pre-judgment interest and has provided cases from this court in support of that claim. Although I am aware that other cases decided in this court have disallowed the compounding of pre-judgment interest in the absence of an argument against it by the defence I shall allow it.
I would also allow pre-judgment interest at the same rate of 5.21% on the awards of pecuniary damages from the date of loss or payment to the date of the judgment order. (Underlining mine)
[88] Counsel for Patterson, the appellant by cross-appeal, make two points. First, that the trial judge was incorrect in stating that the defence did not make any argument on the issue when in fact they say they did. Second, that the trial judge erred in fact and in law in concluding that the general damages awarded to the appellant would attract compound pre-judgment interest. Patterson says that the interest awarded ought to have been simple interest.
[89] Taken literally, the words “in the absence of an argument against it by the defence” lend some substance to Patterson’s primary complaint. However, I do not read these words as demonstrating proof of reversible error on the part of the judge. In fairness, I believe all he intended to say was that the point had drawn only cursory comment from counsel, that he was aware of jurisprudence on both sides of the issue and that he had not had the benefit of any substantive arguments by the defendants objecting to an award of compound interest. I think my characterization is borne out by the single, fleeting reference to it in the only submission made by counsel for Patterson at trial on the point:
My friend gave Your Lordship cases this morning suggesting that the interest on general damages should be compounded he (sic) also acknowledged that there are cases that go the other way. As I read the cases, where the compounding occurred, it was based on the fact that the plaintiff had been depositing money, would have invested it and her investments were compounded. I submit that Your Lordship is aware that there’s a set situation here so at least part of that money Your Lordship can consider might not have been invested in terms of a money-making trend. (Appeal Book p. 1622)
[90] Citing a line of cases at the trial level in this province, including Connor v. Canadian Life Assurance Co. (1992), 108 N.S.R. (2d) 361; Parnell v. Singer (1992), 111 N.S.R. (2d) 127; Thomas Canning v. Juteau (1993) 122 N.S.R. (2d) 23; Cashen v. Donovan (1999), 173 N.S.R. (2d) 87; Economical Mutual Insurance Co. v. Elliott (1999), 176 N.S.R. (2d) 375; and Young v. King (2000) 186 N.S.R. (2d) 265 Patterson argues that pre-judgment interest is awarded as simple interest only and is not compounded unless there is evidence to show that the funds in question would have attracted compound interest had they been in the party’s hands. Absent evidence of an ability or an intention to make an investment or other return-generating use of the funds, simple interest is the appropriate award.
[91] The court’s authority to award interest is found in the Judicature Act:
Subsections (i) and (k) of s. 41 of the Judicature Act, R.S.N.S. 1985, c.240:
(i) in any proceedings for the recovery of any debt or damages, the court shall include in the sum for which judgment is to be given interest thereon at such rates as it thinks fit for the period between the date when the cause of action arose and the date of judgment after trial or after any subsequent appeal;
...
(k) the court in its discretion may decline to award interest under clause (i) or may reduce the rate of interest or the period for which it is awarded if
(i) interest is payable as of right by virtue of an agreement or otherwise by law;
(ii) the claimant has not during the whole of the prejudgment period been deprived of the use of money now being awarded, or
(iii) the claimant has been responsible for undue delay in the litigation. (Underlining mine)
[92] Counsel for Patterson has emphasized the word “thereon” from the portion of the text I have underlined and submits that it can only refer to the preceding words “any debt or damages”. Thus, the interest to be included in the sum for judgment should be simple interest as the statute restricts it to interest on the “damages”. Compounding interest, it is argued, has the effect of awarding interest on interest, akin to revenue generating which is contrary both to the concept of damages as compensation and to the provisions of the Judicature Act, just quoted. Had the Legislature intended to authorize an award based on compound interest, it would have clearly said so.
[93] Patterson’s initial position is that there is no authority in the Judicature Act for awarding compound pre-judgment interest. She does not argue that such constitutes an absolute prohibition; rather that compound pre-judgment interest should only be awarded in situations where there is evidence that the funds would have been invested or otherwise used to reduce revenue in the party’s hands.
[94] The authorities referred to by both Patterson and Leddicote do tend to suggest that the approach taken in this jurisdiction in deciding whether or not to award compound interest is predicated upon the evidence led to support it, as well as the manner in which the trial judge has chosen to fix the dollar value of the claimant’s damages.
[95] The question of the quality or type of proof required to make a case for an award of compound interest has not yet been specifically addressed by this court. While not cited by counsel I did find what I believe are the two cases where an award of compound interest was reversed by this court. In ACA Cooperative Association Ltd. v. Associated Freezers of Canada Inc. et al (No. 3) (1992), 113 N.S.R. (2d) 1 Freeman, J.A,. with Matthews, J.A. concurring, and Jones, J.A., in separate reasons, concurring on this point, said at p. 26:
Interest
[124] Mr. Justice Hallett awarded the plaintiff customers compound prejudgment interest; with respect, there is no evidentiary basis justifying more than simple interest. I would allow the appeal with respect to prejudgment interest in part: compound interest would be reduced to simple interest. (Underlining mine)
[96] Justice Freeman’s decision does not provide an analysis as to why he found the evidentiary foundation to be lacking or what type or quality of evidence might have justified an award for compound interest. When one refers back to the lengthy decision of Hallett, J. (as he then was) at trial (1990), 97 N.S.R. (2d) 91 at 172 it is apparent that in awarding compound interest he did not reference the evidence but rather the text of the Judicature Act, specifically s. 38, now s. 41, reproduced earlier in these reasons. To his mind the statutory provisions justified the conclusion that the claimant had been deprived of the use of the money and the opportunity:
...to earn interest on the award and on the interest earned from year to year. That being the case, it is logical that the plaintiffs be entitled to compound interest for the appropriate period. I awarded compounded prejudgment interest for the first time in Hannah v. Canadian General Insurance Co. (1989), 92 N.S.R. (2d) 271; 237 A.P.R. 271, as it seems implicit in the wording of what is now s. 41(k) (ii) of the Judicature Act that deprivation of the use of the money is a relevant consideration from which it flows that the interest should be compounded annually although that had not been the practice. (Hallett, J., at §328, emphasis in original)
[97] Two years later, Justice Hallett, by then sitting as a member of this court, in the case of Guardian Insurance Co. of Canada v. Hartford Insurance Group [1992] N.S.J. No. 504, citing Associated Freezers, supra, concluded:
Hartford is required to reimburse Guardian for the amount paid by Guardian to Hartford with pre-judgment interest as fixed by the trial judge but not compounded as there was no evidence to support a finding that compound interest should be paid. Evidence on this issue is required. (Underlining mine)
[98] Because this specific question - that is the type and quality of proof required to justify a compounding of pre-judgment interest - was neither raised nor argued in the court below, I decline to decide the issue on this appeal. Before embarking on such an inquiry we should, in an appropriate case, have the benefit of a detailed record, comprehensive arguments and a thorough analysis of the authorities.
[99] After reviewing the entire record and the submissions of counsel, I am not persuaded that the trial judge committed reversible error in finding that an annual compounding of pre-judgment interest was appropriate in this case. I think it significant that the trial judge chose not to award damages in current dollars. He said:
...in arriving at the amount of the award for non-pecuniary general damages, I have not taken into account inflationary factors ...
Where, as here, inflation has not been taken into account in the assessment of damages, I am not persuaded that an award of pre-judgment interest, compounded annually, was an unreasonable allowance for the appellant’s loss of value of the money and loss of the use of the money which interest is intended to compensate. I see no reason to interfere with the trial judge’s determination.
Conclusion
[100] In summary, I find no basis for disturbing the findings and conclusions of the trial judge. His reasons reflect a thorough appreciation of the evidence, a sound understanding of the law and a proper application of one to the other. I would order that the appeal and the cross-appeal be dismissed. As success has been divided, I would decline to make any order for costs.
Saunders, J.A.
CROMWELL, J.A.:
[101] I have had the advantage of reviewing in draft the careful and detailed reasons prepared by my colleague Saunders, J.A. I agree with his proposed disposition of both the appeal and the cross-appeal in all respects but one. In my respectful view, the trial judge’s apportionment of fault in this case was unreasonable and should be set aside. I would alter his apportionment of liability so that the plaintiff would be found 60% and the defendant Patterson 40% at fault for the accident.
[102] I accept that the trial judge’s apportionment of liability should only be interfered with on appeal if there is “a demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles”: see Sparks v. Thompson, [1975] 1 S.C.R. 618; Bow Valley Huskey (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210 at 1255, para. 78 and Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298 at p. 338, para. 57. However, in my respectful view this threshold is reached in the present case.
[103] The trial judge found both the plaintiff and defendant negligent for errors in driving judgment in winter conditions. He found that the plaintiff was negligent in driving her vehicle into a slush patch which was clearly visible to her in sufficient time to avoid striking it. This resulted in her losing control of her vehicle and sliding sideways partially blocking both east bound lanes of the highway. The judge found the defendant Patterson was negligent in travelling too closely behind the plaintiff’s vehicle considering the slippery condition of the highway at the time. He stated:
Although six car lengths may be a safe following distance under normal road conditions, particularly on a 4-lane highway, it was not, in my view, a safe distance under the slippery road conditions existing at the time.
[104] This is, therefore, a case of a collision resulting from a rear-following vehicle colliding with the vehicle in front and in which the driver of the rear-following vehicle was found to be negligent: see, for example, Wilson v. MacInnis (1992), 111 N.S.R. (2d) 78 (T.D.). That being the case, the extreme apportionment of fault of 90%-10% against the driver of the front vehicle requires some explanation or, at least, some support in the record. I can find neither.
[105] In support of his unequal apportionment of liability for the accident the judge said this:
... the collision was caused primarily by the plaintiff losing control of her vehicle. ... The accident could have been avoided if she had either slowed earlier or driven to the left of the slush patch since the left hand lane was clear of obstruction. ... I am of the view that the greater portion of the blame for the collision rests with the plaintiff for failing to maintain control of her vehicle and placing the defendant’s vehicle in jeopardy by blocking both lanes of traffic so the defendant could not safely pass.
(emphasis added)
[106] Aside from this justification for an unequal apportionment, the judge gave no reasons for his specific apportionment nor does he refer to the relevant legal principles.
[107] I think it is clear that the trial judge apportioned liability primarily by attempting to assess the relative degrees of each party’s causal contribution to the accident. He refers, for example, to the plaintiff losing control of her vehicle as the primary cause of the accident and notes that it could have been avoided had she maintained control by avoiding the slush patch. In taking this approach, the trial judge, in my respectful view, erred in law.
[108] The leading case on apportionment of liability in this Province is the decision of the Supreme Court en banc in Blenkhorn v. Correia (1958-59), 41 N.S.R. 1. It makes clear that the primary focus of apportionment is the blameworthiness of the conduct which causes the accident. In that case, MacDonald, J., with whom MacQuarrie and Parker, JJ. concurred, said this:
The prevailing Canadian practice is to look at such causative conduct [i.e. negligent conduct which contributes to the accident] in terms of relative or comparative blameworthiness or culpability, i.e., to see in what degrees the parties departed from the norm of reasonable conduct (cf. Williams on Joint Torts, p. 398; Fleming, supra). Examples of this point of view are abundant in the Canadian decisions. Thus in Olsen & Co. v. The “Princess Adelaide”, [1929] 3 D.L.R. 383, Ex. C.R. 199, 41 B.C.R. 274 (affd [1930] 4 D.L.R. 778, [1931] S.C.R. 254) Martin L.J.A. said (p. 389 D.L.R., p. 206, Ex. C.R.):
I apportion the liability for ‘degrees of the fault’ as two-thirds on the part of the ‘Princess Adelaide’ and one-third on that of the ‘Hampholm’; there is a great distinction between the conduct of the two vessels, the former deliberately violated the regulations in a gross degree and the latter erred in her manner of endeavouring to carry them out.
Crothers v. Northern Taxi Ltd. (1957), 10 D.L.R. (2d) 87, 65 Man. R. 146, was a case in which servient driver was negligent in entering an intersection before it was safe to do so and the dominant driver was negligent in failing to keep a proper look-out; the former was found to be two-thirds to blame because “there was a greater degree of responsibility resting on the driver in the servient position”. Finally the Reports are studded with such terms as “blame”, “culpable”, “there was greater negligence on the part of”, “the fault of the plaintiff was the greater one”, etc., as grounds for unequal divisions of loss.
(emphasis added)
[109] In my respectful view, the trial judge erred by not assessing the comparative blameworthiness of the causative negligent acts which he had found had been committed by each of the plaintiff and the defendant Patterson.
[110] Examining the facts of the case from the perspective of relative degrees of fault, the 90-10% apportionment is, in my respectful view, clearly unreasonable; indeed, no reason was given to support it. Both parties committed errors of judgment in slippery driving conditions. While the plaintiff’s negligence is somewhat more culpable in that it created a dangerous situation for other drivers, it can hardly be said, in my respectful view, that her conduct was nine times more blameworthy than the conduct of the defendant Patterson in travelling too closely behind the plaintiff’s vehicle considering the slippery condition of the highway at the time.
[111] In my view, the trial judge also erred by not referring to highly relevant evidence on the question of the blameworthiness of the defendant Patterson. Of course, not every failure to mention relevant evidence in a trial judge’s reasons justifies appellate intervention. However, as pointed out by LaForest, J. in Schwartz v. Canada, [1996] 1 S.C.R. 254 at 280-81, it is accepted that a clear omission of evidence by a trier of fact is the kind of error that will justify a reconsideration of the evidence by an appellate court where the omission “...gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion.”: Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at ¶15.
[112] In cross-examination, the defendant Ms. Patterson testified as follows:
Q. Now, we’re going back, and you’re six car lengths behind and Ms. Leddicote enters the slush area. At this point in time you take your foot off the gas. Is that correct?
A. Yes.
Q. And at this point in time, did you indicate that you were actually braking?
A. Yes, I did brake.
Q. And it obviously wasn’t a braking to the same degree as Ms. Leddicote was?
A. No, it was not.
Q. And, in fact, the traction in the area that you would have been in, would have been better than the traction that she was in the slush area. Is that fair to say?
A. Yes.
...
Q. It may have been that Ms. Leddicote had applied her brakes and you took your foot off the gas, and then coasted and realized that she was in trouble, and then applied your brakes?
A. No. I applied the brake.
Q. Maybe, but you didn’t apply the brake in a severe fashion.
A. No, I thought she was going to get out of the fish-tail.
Q. Right. And even though she was fish-tailing, you were closing the distance between you and her as she was fish-tailing. Correct?
A. Yes. She was slowing down very fast.
(emphasis added)
[113] In my respectful view, this testimony, to which the judge does not refer, indicates that Ms. Patterson was not only following too closely but failed to react appropriately to the emergency situation unfolding in front of her. Moreover, Ms. Patterson’s indication that she thought that the plaintiff was going to recover control of her vehicle seems to me to place in a somewhat different light the plaintiff’s own decision to drive through the slush patch. The omission of reference to this important evidence coupled with the absence of reasons from the judge supporting his apportionment of liability justifies a reconsideration by this Court of the trial judge’s conclusions in light of this evidence. Taking this evidence into account, the learned trial judge’s conclusion that Ms. Leddicote was nine times more to blame for this accident than the defendant Ms. Patterson is, in my respectful view, unreasonable.
[114] I recognize and accept that a trial judge’s apportionment of liability will be set aside only in rare and exceptional circumstances. However, in this case the judge gave no reasons to support his particular and extreme apportionment, he did not refer to the relevant legal principles, he appears to have proceeded on the basis of incorrect legal principles and did not refer to highly relevant evidence. These factors, in combination, require appellate intervention.
[115] I conclude, therefore, that the learned trial judge’s apportionment of liability must be set aside. Rather than order a new trial, I think that this is an appropriate case for this Court to substitute its own apportionment of liability. In my respectful view, an appropriate apportionment of fault in this case would be 60% as against the plaintiff Ms. Leddicote and 40% as against the defendant Ms. Patterson.
[116] I would reapportion liability in this way and vary the order for judgment accordingly. I would ask counsel to prepare a draft of an order for judgment in this Court which would give effect to this disposition of the appeal and if they cannot agree on such a draft, to make written submissions concerning the form of order within ten (10) days of today’s date.
[117] The appellant shall pay costs fixed at $1000.00 inclusive of disbursements to the Attorney General. As success on appeal as between the appellant and the respondent Ms. Patterson has been divided, there will be no order as to costs between those parties.
Cromwell, J.A.
Concurred in:
Glube, C.J.N.S.