SUPREME COURT OF NOVA SCOTIA
Citation: Mawdsley v. McCarthy's Towing and Recovery Ltd., 2010 NSSC 168
Date: 20100419
Docket: Hfx No. 203216
Registry: Halifax
Between:
Carl Mawdsley
Plaintiff
v.
McCarthy’s Towing & Recovery Limited and
Byron McCarthy
Defendants
D E C I S I O N
Revised decision: The text of the original decision has been corrected according to the Erratum dated May 26, 2010. The text of the erratum is appended to this decision.
Judge: The Honourable Justice Peter Bryson
Heard: February 8, 9, 10, 11, 15, 16 &17, 2010, in Halifax, Nova Scotia
Decision: May 19, 2010
Counsel: John Shanks & Christopher Madill, for the Plaintiff
Jean McKenna & Sarah Kirby, for the Defendant
By the Court:
INTRODUCTION
[1] Carl Mawdsley is fortunate to be alive. But for a few frightening moments on a late summer’s day, he must have feared the worst. He suffered serious injuries while trying to climb into a truck that he was about to drive. Caught between the door and an adjacent truck his head and upper body suffered crushing injuries that were mercifully brief. But some ill effects persist to this day.
The Accident
[2] Mr. Mawdsley was injured when he was trapped between two garbage trucks, one of which was stationery and one of which had just begun to be towed by the defendant, McCarthy’s Towing & Recovery Limited. The tow truck was being driven by the defendant, Byron McCarthy. The defendants’ description of the accident as “bizarre” is apt. Mr. Mawdsley was crushed against the door of his truck while he was attempting to enter his vehicle. What happened?
[3] On September 10, 2001, Mr. Mawdsley was operating a rear-loading garbage truck owned by G.E. All Trucking Limited (“G.E.”). Mr. Mawdsley was working a commercial route with which he was familiar. He had stopped at the Save Easy store in Lunenburg to collect recyclable cardboard. The Save Easy has a loading dock at the side of the building suitable for one vehicle, although there is space for two to park. Mr. Mawdsley backed the truck to the loading dock. At that point, the truck stalled. Not only did this mean the vehicle could not be moved, but it could not be operated since the hydraulic compacting mechanism at the rear of the truck required the power from the vehicle’s engine to work. Mr. Mawdsley went into the Save Easy store and telephoned G.E. He asked for a replacement vehicle and a tow truck. He was concerned that it would take too long to repair the vehicle in order to conclude his route for the day.
[4] The truck being driven by Mr. Mawdsley was a large white 1991 International. Shortly after he made his phone call to G.E., a replacement vehicle arrived being driven by Kevin Murphy. The second truck was a 1986 blue Ford which was smaller than the International. It also had a rear mounted compacting device. Mr. Murphy backed the Ford up to the loading dock, immediately along side the International. Mr. Mawdsley and Mr. Murphy began to load cardboard into the rear of the Ford. About 10 minutes later, Byron and Aubrey McCarthy arrived with their tow truck. It was a GMC tandem. These are large trucks, designed to tow large trucks. Byron McCarthy was driving and he backed the tow truck in front of the International.
[5] Byron McCarthy has been a tow truck operator for about 30 years. While he had no specific training, he learned his trade from on the job experience. He had an air brake licence which is required for driving a vehicle like the tow truck. He was familiar with this particular vehicle.
[6] Aubrey McCarthy is the owner and operator of McCarthys Towing & Recovery Limited. He has been in that business for 30 years. He was familiar with the GMC tandem tow truck which he had driven on previous occasions. Aubrey McCarthy said that his company tows G.E. vehicles all the time. They did so at the time of the accident and they do so now. The tow truck was in good condition on September 10, 2001.
[7] After arriving, the McCarthys got out of the tow truck and began to attach the towing cradle to the front of the International. Once the cradle was affixed, it was raised a few inches and the International was moved ahead slightly and away from the loading platform. This was to allow for the “tilt” that would inevitably occur once the towing cradle was fully lifted resulting in the front end of the International going up and the rear going down.
[8] There is a small discrepancy in the evidence at this point. Mr. Mawdsley says that he told the McCarthys which truck needed to be towed. The McCarthys say they already knew which truck to tow, as a result of having spoken to G.E.’s dispatch office. There is a further small discrepancy in the evidence with respect to how far the McCarthys moved the International away from the dock. Aubrey McCarthy estimated it at 2-3 feet. Byron McCarthy says he moved the International about two feet away from the dock. In contrast, Mr. Mawdsley said the International may have been “ two - four - six feet” from the loading dock. Mr. Murphy estimated that the International was “maybe six or ten feet” from the dock. He only saw it “at a glance.”
[9] After the International was moved forward, the McCarthys started to work under the truck in order to disengage its brakes and drive shaft, preparatory to towing. They estimate this work took about one-half hour. The McCarthys say that they came out from under the International, on the passenger’s side. They say that they saw Mr. Murphy and Mr. Mawdsley standing in front of the Ford. The McCarthys testified that Byron McCarthy approached Mr. Murphy and Mr. Mawdsley and said that he was going to “pull the wrecker ahead.” Byron McCarthy went around the front of the tow truck and climbed into the cab. While his brother walked around and climbed into the tow truck, Aubrey McCarthy turned his attention to the front of the International. It was his job to check the chains which held the front axle of the International to the tow cradle. It was Byron McCarthy’s intention to move the International forward into the parking area in front of the Save Easy. During that time Aubrey McCarthy was to inspect the towing mechanism to ensure that it was taut and safe for travel to the repair garage. Aubrey McCarthy says that he told Mr. Murphy and Mr. Mawdsley to “hang tight we’re leaving.” In cross-examination the McCarthys agreed that they do not recall any acknowledgement from Mr. Murphy or Mr. Mawdsley to their advice that the tow truck would be moving forward or that they should “hang tight.” Although the engines of the Ford and the tow truck were on (to operate the hydraulics) both McCarthys were confident that they were heard. When he got into the tow truck, Byron McCarthy said he had no expectation that Mr. Mawdsley and Mr. Murphy would be leaving before him. He said that the trucks were very close together and he didn’t believe that the driver’s side door of the blue truck could be properly opened. He was in his vehicle and they were not. He was ready to go and they were not.
[10] The evidence of Mr. Mawdsley is a little different. He says that after he and Kevin Murphy finished loading the Ford, he walked up between the Ford and the International and came upon one of the McCarthys standing in front of the Ford. Mr. Mawdsley says he told Mr. McCarthy that they were “done” and that he would be leaving. He believes Mr. McCarthy said “okay.” Mr. Mawdsley assumed that the other McCarthy was in the cab of the tow truck. Mr. Mawdsley says he then walked back to the Ford and attempted to get in. When he did so, his head and torso became trapped between some portion of the International, (which he could not see) and the open door of the Ford. He says he never saw the International moving forward at any time. His expectation was that Aubrey McCarthy was “looking out” for him. But by his own account, Mr. Mawdsley never spoke to Byron McCarthy, who was the driver. In cross-examination Mr. Mawdsley acknowledged that Mr. McCarthy may have said that they were leaving as well.
[11] Kevin Murphy’s recollection is yet again a little different. He says he followed Mr. Mawdsley between the vehicles, but it was tight, and he had to turn sideways to do so. He recalls a brief conversation in front of the Ford with the McCarthys, or at least one of them. He has no recollection of what was specifically discussed. He said that he and Mr. Mawdsley intended to leave. He turned his back on Mr. Mawdsley in order to walk back to the passenger’s side of the Ford to get in. At that point, the tow truck had not started to move. As he started to enter the Ford on the passenger’s side, he saw Mr. Mawdsley trapped between the inside of the driver’s side door of the Ford and the International. He said that he saw the International “moving forward slowly.” He yelled a warning. The International stopped in “ a couple of seconds.”
Mechanism of Injury and Liability
[12] The defendants called Mr. Ken Zwicker who performed an accident reconstruction of the events of September 10th. As a former RCMP officer, Mr. Zwicker has extensive qualifications in accident reconstruction. He has frequently testified in criminal and civil courts within his discipline. His qualifications were accepted by the plaintiff.
[13] Mr. Zwicker examined and measured each vehicle. The length of the International was 10.45 metres or 34.26 feet. At the right rear of the International, Mr. Zwicker measured a tail light bracket and a hydraulic bracket with a lever which protruded respectively 19.5 centimetres, (7.67 inches), 28 centimetres, (11.02 inches) and 36 centimetres, (1.417 feet), from the side of the truck. For convenience, I refer to these as the “bracket assembly.”
[14] The Ford was 8.3 metres or 27.06 feet long. The driver’s side door was approximately 6.94 metres or 22.8 feet from the rear of the truck. Mr. Zwicker opined that the door would need to be open at least 20 inches to allow entry. Fully open, the door protrudes 36 inches from the side of the truck.
[15] The large GMC tandem tow truck was approximately 12 metres or 39 feet long.
[16] During cross-examination it was established that Mr. Mawdsley was 165 centimetres (approximately 5 feet 4 inches) tall. The top of the scar on the right side of his neck, caused by the accident, is 150 centimetres from the ground, and the bottom of the scar is 144 centimetres from the ground. Kevin Murphy had the best vantage point from which to see Mr. Mawdsley when he was injured. He said Mr. Mawdsley’s head was trapped between the outer edge of the driver’s side door of the Ford, approximately where the latching mechanism is, and the bracket assembly of the International. When one compares this evidence with Mr. Mawdsley’s height and the height of the door at the impact point identified by Mr. Murphy (and measured by Mr. Zwicker 1.4 – 1.45 metres from the ground), it appears that the injury to Mr. Mawdsley occurred when he was trapped between the open driver’s side door of the Ford, and the bracket assembly at the rear of the International.
[17] Mr. Zwicker opined that Mr. Mawdsley’s injuries occurred when his head and upper body became trapped between the trailing edge of the open Ford door and the bracket assembly on the International. This is consistent with the injuries, the evidence of Mr. Mawdsley, the evidence of Mr. Murphy and the measurements taken by Mr. Zwicker. I accept this opinion.
[18] Mr. Zwicker then conducted field tests, using all three vehicles. Byron McCarthy operated the tow truck. Based on the evidence of Mr. Murphy that he had exited the Ford on the driver’s side when he arrived, and Mr. Mawdsley’s evidence that he was entering the Ford at the time of the accident, and taking into account the physical features of the vehicle, Mr. Zwicker opined that at the time of the accident, the vehicles could not have been less than 26 inches, nor more than 31 inches apart. All the witnesses were asked to view photographs of Mr. Zwicker’s reconstruction of the distance between the vehicles and agreed that it looked accurate or “about right.”
[19] To measure the time it took for the International to contact the open Ford door, the International was positioned 2 feet and subsequently 5 feet from the rear of the Ford. These distances were chosen to accord with the evidence of Mr. Mawdsley and the McCarthys regarding the relative pre-accident positions of the vehicles. A series of tests were then performed. The average time to accelerate from the 2 foot position to the Ford door was 5.9 seconds. The average from the 5 foot position was 5.2 seconds. These are the times it would have taken for the bracket assembly at the rear of the International to collide with the open Ford door, where Mr. Mawdsley was at the time he was injured.
[20] Next, Mr. Zwicker performed a time-distance analysis to try and determine whether Mr. Mawdsley entered the gap between the Ford and International before or after the International began moving. Taking into account the evidence of all the witnesses at discovery, Mr. Mawdsley was between 5.6 metres (18 feet) and 4.4 metres (14.43 feet) from the door of the Ford, when he started towards it. Using a standard test that measured a cross section of the walking speed of the general populace, Mr. Zwicker reported that a 40 year old male with a walking rate in the 85th percentile, covers 5.8 feet per second. On this basis, Mr. Zwicker opined that Mr. Mawdsley would have taken 1.1 to 3.2. seconds to reach the Ford door. From this, Mr. Zwicker concludes that the International probably began moving 2 to 4.8 seconds before Mr. Mawdsley began walking towards the Ford.
[21] It is clear that the following variables played a role in how the accident occurred:
- How far the rear bracket assembly of the International was from the Ford’s driver’s side door when the International began to move forward;
- How quickly the International moved forward as the tow commenced;
- How far Mr. Mawdsley was from the Ford door when he started walking towards it;
- How quickly Mr. Mawdsley walked.
[22] Three of the witnesses placed the International between 2 and 6 feet from the loading dock, prior to the tow commencing. Only Mr. Murphy ascribes a “possible” greater distance, but he only saw the International’s positioning “at a glance.” The purpose of pulling the International forward in the first place was to avoid hitting the loading dock when it was lifted by the tow. This required little “pulling ahead.” I find that the distance was less than 6 feet which accords with the evidence of the McCarthys and is within the range of Mr. Mawdsley’s estimates. Moreover, this was part of the McCarthys work. They had reason to notice and recall this distance. This would place the bracket assembly at the right rear of the International approximately 17 - 22 feet from the Ford’s door.
[23] How far Mr. Mawdsley was from the Ford door before he started walking towards it, is more difficult. For a number of reasons, I reject his evidence that he was standing by the fuel tanks or cab of the tow truck when he started walking back towards the Ford. First, the distance was so great that the tow truck would almost certainly have pulled the International clear of the Ford before Mr. Mawdsley even reached the gap between the vehicles. He was walking quickly, but he would still have to walk approximately 30 feet to reach that gap. Second, Byron McCarthy said he checked his mirrors before pulling forward and saw no one between the trucks. Third, no one else placed Mr. Mawdsley in that location. Fourth, his own evidence on this point differed from discovery when he said he was closer to the back of the tow truck and the front of the International. Fifth, his evidence on this point became less certain at trial. He used phrases like “... can’t be sure” and “thought” he was by the cab. It is much more likely that Mr. Mawdsley, Mr. Murphy and Aubrey McCarthy were in front of the Ford, near the passenger’s side, but out of Byron McCarthy’s line of vision. This would also be consistent with the evidence of both McCarthys and Kevin Murphy. How far in front of the Ford is a little less certain. Aubrey McCarthy estimated 10 feet.
[24] While the Zwicker report was helpful to the court in establishing the physical proximity of the vehicles, and the likely time it took for the International to travel by the Ford, I do not necessarily accept all of Mr. Zwicker’s conclusions. In particular, trying to determine exactly where Mr. Mawdsley was when he started walking to the Ford, and how fast he walked, cannot be determined with precision. The key is whether or not the International was moving at the time Mr. Mawdsley entered the gap between the two trucks.
[25] The evidence of Mr. Murphy and Aubrey McCarthy is that Mr. Mawdsley had not begun to move when they both turned away from him. Aubrey McCarthy turned away towards the tow truck. It was his job to monitor the chains on the front axle of the International while it was being pulled ahead. The International had not begun to move at this point. It is here that the Zwicker reconstruction is of particular assistance to the court. During trial Aubrey McCarthy was asked to watch the video reconstruction of the tow truck pulling away with the International. He agreed with an estimate that indicates it took between 5 and 6 seconds for the bracket assembly on the International to reach the Ford’s driver side door. There are other indications that the International was moving slowly. The tow truck was in “low reduction gear” and could not move quickly in that gear. The driver, Byron McCarthy, was approaching a blind corner, (of the Save Easy store) and needed to proceed with caution. The International and Ford were in close proximity and it would not make sense to risk a glancing blow by moving quickly. As well, Aubrey McCarthy was monitoring the tow’s effect on the chains on the International’s front axle. This could only be done at slow walking speed. When Mr. Murphy saw Mr. Mawdsley trapped, he says the International was “moving slowly.” And when the alarm was raised the International stopped almost immediately, despite the enormous momentum involved with the movement of two large vehicles, even at slow speed.
[26] Byron McCarthy testified that he was able to stop the vehicle within “a split second” of hearing a warning yell from somebody. He conceded in cross-examination that while he was doing the accident reconstruction, he was anticipating having to stop which would differ from the day of the accident. But it is clear that he felt he could stop very quickly and this is consistent with the evidence of the other witnesses concerning his low speed at the time. If he had not stopped almost immediately, Mr. Mawdsley’s injuries would likely have been more serious. They were serious enough. Taking all the evidence into account, I find it most likely that the International was being towed ahead slowly.
[27] With respect to the events immediately prior to the accident, I prefer the evidence of the McCarthys to that of Mr. Mawdsley because:
- They were engaged in preparing to tow the International; this was their work and they had reason to pay attention to it;
- Mr. Mawdsley’s evidence was alternately vague and precise; for example, he was certain that he told one of the McCarthys that he was leaving; he believed that the reply was “okay” and he “may” have been told that the McCarthys were also leaving;
- Mr. Mawdsley’s description of where he was speaking to Mr. McCarthy prior to heading towards the Ford cannot be right, for the reasons set out in paragraph 23 above;
- Mr. Mawdsley denied that there was any exchange with Kevin Murphy in front of the Ford regarding who was going to drive; yet both Aubrey McCarthy and Kevin Murphy contradict him on this point;
- Mr. Mawdsley is the only one who definitely says that the brief exchange he had was only in the presence of one of the McCarthys. Neither they nor Kevin Murphy confirm this, although Mr. Murphy was a little less certain. It is most likely that the conversation occurred initially with all four men together and then three, as Byron McCarthy headed towards the tow truck and entered the cab.
[28] As it turns out, both the Ford and the tow truck were ready to go virtually at the same time. Aubrey McCarthy said it only made sense for the tow truck to go first. He said they were ready to go and the “G.E. guys” were not. He also said that it would have been more difficult for the Ford to exit from that situation than for the International and the tow truck because the Ford would have to negotiate not only the corner of the Save Easy store, but the tow truck as well. It could be done, but it did not make sense to him that it should happen first. I accept this evidence.
[29] I also find that Mr. Mawdsley was anxious to leave. It was late in the day – certainly after 5:00 p.m. He had several more stops to make in New Germany. He says he walked quickly to the Ford. He was in a hurry to leave.
[30] Taking into account all of the evidence, including that of the four men present, and the measurements and tests performed by Mr. Zwicker, I find it most probable that the tow truck and the International began moving forward either before Mr. Mawdsley entered the gap between the Ford and the International, or virtually as he did so. Based on all the evidence, I consider it most likely that the bracket assembly on the rear of the International took between 5 and 6 seconds to reach the open door of the Ford. To accept Mr. Mawdsley’s evidence that the International was not moving at any time, prior to him turning to open the Ford door would mean that he paused for 4 or 5 seconds before attempting to get in. There is no positive evidence that he did so. In cross-examination he said that it was “possible” but he didn’t really know. He didn’t adopt that suggestion, and because he says that he was walking quickly, I consider it unlikely. Alternatively, the International would have had to lurch forward approximately 20 feet in the split second after Mr. Mawdsley turned to open the Ford’s door. This was probably physically impossible and there is no evidence that it did.
[31] Although counsel argued that the narrowness of the gap between the vehicles could have slowed Mr. Mawdsley down, he did not testify to that. Rather, he said he could move freely between the vehicles because he is a small man (5 feet 4 inches and approximately 135 pounds at the time). It was also suggested that the proximity of the vehicles “may have” affected his ability to get into the Ford. But Mr. Mawdsley said “he didn’t get the chance because at that point he was crushed.” In other words, there was no opportunity for any potential delay in entering the Ford, to become apparent. Byron McCarthy’s evidence confirms this. He said that there was no one in the gap when he checked the mirror, just prior to pulling ahead.
[32] In sum, I do not accept Mr. Mawdsley’s evidence that the International was not moving as he walked between the vehicles. Moreover, even if the International did not start moving until Mr. Mawdsley reached the gap between the vehicles, he would have had ample time to move out of the way before the bracket assembly reached the driver’s side door of the Ford. If he did not notice the International moving forward, he should have done so.
[33] Mr. Mawdsley would also have had an audible warning that he should have recognized. The tow truck had to release its air brakes prior to moving the International forward. This would result in a distinctive and familiar sound, even to those who do not drive heavy vehicles for a living. It was certainly very apparent on the video tape and Mr. Mawdsley acknowledged that there was a change in engine tone as well. He had an air brake licence and was qualified to drive heavy vehicles. In the circumstances, the distinctive hiss of the air brakes releasing would have been an ominous sign of impending movement by the tow truck.
[34] It may be that the parties failed to communicate adequately about their respective intentions. Clearly both thought they had expressed to the other an intention to leave. With the vehicles in close proximity, the situation was potentially dangerous. Both Mr. Mawdsley and Aubrey McCarthy acknowledged that walking between the vehicles would be dangerous if either was moving. The release of the air brakes would convey the imminent departure of the tow truck and International. Yet this apparently did not deter Mr. Mawdsley. On the other hand, it was Byron McCarthy driving the tow truck who precipitated that change. He would be initially responsible to ensure that moving ahead could be done safely. He did take preliminary steps. He says he advised Mr. Mawdsley and Mr. Murphy that he was moving. He believes that they heard him. He checked his mirrors and saw nothing. He pulled ahead slowly. But he also knew that there were three people behind him close to the Ford and the International, two of whom he could not assume were familiar with his business. It is true that once he moved ahead he had to pay attention to what was in front of him, owing to the blind corner presented by the side of the Save Easy store. Even so, he was travelling slowly. He should have continued to pay some attention towards his right rear. It would only take a split second to look at the mirror to his right. If he had done so, he likely would have seen Mr. Mawdsley make his ill-advised move or alternatively seen the Ford door opening.
[35] Aubrey McCarthy was in a position to observe Mr. Mawdsley, although his attention was directed elsewhere. He was watching the front axle of the International and as it moved forward his attention would have been towards his right. He did not see Mr. Mawdsley walk between the trucks.
[36] When Mr. Mawdsley began walking towards the Ford, he was behind Aubrey McCarthy, who could not see him. But as Mr. Mawdsley approached the gap between the vehicles, he should have come into the periphery of Aubrey McCarthy’s vision. Aubrey McCarthy acknowledged that if he had seen him, he would have prevented him from entering that gap.
[37] On balance, it is hard to see how this accident could have occurred absent a lack of care by both sides. Carl Mawdsley walked into danger when he tried to enter the Ford while the International was moving. I find that he was negligent in doing so. I accept Byron McCarthy’s testimony that he checked his right side mirror before moving forward. But he should have checked it again. He was moving ahead slowly and could have done so in an instant, without neglecting what was in front of him. His preliminary steps were appropriate. Accordingly, I would ascribe the greater lack of care to Mr. Mawdsley.
[38] When apportioning liability in a negligence action, the court’s obligation is to assess the blameworthiness of the conduct which causes the accident. In Leddicote v. Nova Scotia (Attorney General) 2002 NSCA 47 at ¶ 108, Cromwell, J.A., (as he then was) writing for the majority said:
[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)
[39] Applying the “causative blameworthy” principle to the circumstances, I ascribe greater blameworthy conduct for the accident to Mr. Mawdsley than to Byron McCarthy because it was Mr. Mawdsley who placed himself in peril by moving into a dangerous situation. He should have known both by sound and sight not to do so or to have withdrawn when the International started moving forward. He was also familiar with both garbage trucks. He would have opened the door of each countless times. He would have been aware of the protruding bracket assembly on the International. I do not attribute the same degree of fault or blameworthy conduct to Byron McCarthy because I accept his evidence that prior to moving ahead, he checked his right mirror and did not see anyone in it. At that moment it was safe to proceed. But had he checked his mirror again, as he was edging forward, he should have seen Mr. Mawdsley or some sign of movement that would have caused him to stop. While it is possible that Aubrey McCarthy could have seen Mr. Mawdsley enter the gap between the vehicles out of his left peripheral vision, I accept his evidence that he did not. In his mind, Mr. Mawdsley and Mr. Murphy had been advised that the tow truck was going to move forward. His job was to focus on the front axle of the International. That focus would move from his left to his right once the International started moving – that is in the opposite direction from Mr. Mawdsley.
[40] Mr. Mawdsley’s fault was one of commission and Byron McCarthy’s was one of omission. In these circumstances, Mr. Mawdsley bears greater responsibility for what happened. So Mr. Mawdsley precipitated the risk of injury by attempting to enter the Ford when the International was moving. And thereafter Byron McCarthy failed to notice Mr. Mawdsley’s ill-advised attempt. The appropriate apportionment of fault is 60% against Mr. Mawdsley and 40% against Byron McCarthy.
Mr. Mawdsley’s Injuries
[41] Following the accident, Mr. Mawdsley was taken to Fisherman’s Memorial Hospital in Lunenburg. He was then airlifted to the QEII Health Sciences Centre in Halifax. He spent eleven days in the Infirmary. Mr. Mawdsley’s injuries were severe. The crushing injury to his head and neck broke his right lower jaw and severed the facial nerve on that side. He lost any feeling on the right side of his face and this condition persists today. He still cannot chew on the right side for fear of biting his cheek or tongue. He had an external laceration on the right side going from his right ear, along the edge of his jaw to his neck. He suffered a laceration on the back of his head and a puncture wound to his chest. He sustained two undisplaced rib fractures. He suffered a pneumothorax, and a third degree separation of his left AC joint. He had a tracheostomy. He suffered neuropraxia to his sensory nerve in the left forearm. He had two jaw surgeries. Mr. Mawdsley was also referred to an orthopaedic surgeon with respect to his AC joint separation and to a neurosurgeon with respect to his neuropraxia. Ultimately he lost some sensitivity of touch on his left arm, although extensive physiotherapy helped him recover left arm function. Despite Mr. Mawdsley’s dental surgeries, he still suffers from some malocclusion and he has some facial asymmetry.
[42] Mr. Mawdsley underwent lengthy physiotherapy and work conditioning. This was only partly successful, although he did return to work with modified duties in July 2002. On December 16, 2002, Mr. Mawdsley rolled his garbage truck when it lost power. Mr. Mawdsley had a neck strain from that incident. After conferring with his doctor, he resigned from G.E. in December of 2002. At that time he was still experiencing persistent right shoulder and neck pain which was characterized as “chronic” and “work related.”
[43] By January of 2002, Mr. Mawdsley’s brachial plexus compression injury had disappeared. Neurosurgeon Renn Holness reported that there had been injury to the cutaneous nerve of the left arm, affecting sensation. He expected a “return to normal duties” after physiotherapy. Of course, he was referring to the neurological impairment for which he was consulted.
[44] Mr. Mawdsley’s last dental surgery was in the spring of 2002. In April of that year Dr. Taylor was reporting that Mr. Mawdsley’s occlusion was back to normal (it did subsequently regress) and that he had “no complaints.” By July of 2002, Mr. Mawdsley was back working at G.E., although initially on a reduced basis. His physiotherapist’s report says that in June of 2002 Mr. Mawdsley was hammering, fencing, shovelling and caring for livestock. In July of 2002 he reports pain in the “right yoke area” to his physiotherapist. In September, his physiotherapist notes that Mr. Mawdsley is being offered a light residential route at G.E. which the physiotherapy records “sounds reasonable.”
[45] In early 2003, Mr. Mawdsley had a functional abilities evaluation performed by his physiotherapist. This evaluation found that Mr. Mawdsley could work at a light physical capacity level for lifting and carrying. Although there is no evidence that his right shoulder was injured at the time of the accident, nevertheless it is his right shoulder of which he primarily complained at that time. He was also complaining of pain in his right lower neck and upper back.
[46] By May of 2003, Mr. Mawdsley was looking for work, although his right shoulder continued to act up. In July of that year he still had neck and right shoulder pain for which he takes Tylenol 3 when required.
[47] In the fall of 2003, Mr. Mawdsley began working at Canadian Tire. However, after a couple of months he discontinued this work, as he said it was too demanding. He found that moving such items as batteries and tires were painful and aggravated his condition. He also found some initial difficulty using the computer and says he had memory and concentration problems. Mr. Mawdsley had a reassessment by his physiotherapist in November 2003. At that time his main complaints were of neck pain and pain in both shoulders and upper back. Occasionally he had headaches and suffered from fatigue.
[48] In February 2004, Mr. Mawdsley began work as an animal care worker in an animal shelter in Bridgewater. By all indications he enjoyed this work and was good at it. Unfortunately, owing to organizational changes, Mr. Mawdsley was laid off in September 2005.
[49] In April 2004, Mr. Mawdsley was assessed by a psychologist regarding suspected brain trauma arising from his accident. The psychologist concluded that Mr. Mawdsley’s neurocognitive profile was consistent with mild to moderate traumatic brain injury. He had lower than expected processing function and some memory impairment. This assessment is addressed further below.
Impact of Injuries
[50] Mr. Mawdsley now lives in an old farm house on about 2 acres of property in the Upper Chelsea area of Nova Scotia. He has lived there for approximately 5 years. Most of the property is pasture. He has pets, but does not keep livestock. He lives alone. His son Oliver Travis lives with his mother at Maitland Bridge, about 45 minutes drive away.
[51] When the accident occurred, Mr. Mawdsley and his common law spouse lived together on the farm at Maitland Bridge. They met in Ontario but moved to Nova Scotia in part because Mr. Mawdsley’s mother had moved here and in part because farm property was more affordable in Nova Scotia. They hoped to start a business boarding horses and offering trail rides and riding lessons. They made initial preparations. Mr. Mawdsley cleared some land, completed a riding ring, and put up some fences and paddocks. By September 2001, Mr. Mawdsley says the farm was “pretty well ready” although no riding trails had been constructed. Riding lessons could have been offered because the riding area had been prepared. But Mr. Mawdsley says his spouse could not offer lessons because she was busy working two jobs to make ends meet.
[52] Mr. Mawdsley said the accident took a toll on his relationship with his spouse financially and physically. The accident affected his ability to have intimate relations with his spouse. This had an adverse impact on them both. Mr. Mawdsley also claimed that the accident put financial pressure on them. Nevertheless, in cross-examination he conceded that he was receiving funds from Workers’ Compensation after the accident. Although these payments were less than he had been earning, they were tax free, so the overall financial impact on the family should have been minimal.
[53] Notwithstanding their joint plans to operate a riding school, Mr. Mawdsley and his spouse did not have concrete business plans and other than owning some horses, didn’t really implement any. Whether this contemplated business would have been successful but for the accident, or whether it was really affected by the breakup of the relationship is simply too speculative for the court to form any conclusion.
[54] At the time of trial Mr. Mawdsley was not working. He is a seasonal worker and his work will begin in May and finish in November. He works for a neighbour on her farm. He cleans out horse stables, walks the dog, mows the lawn and puts hay in the horse stalls. To do this he has to climb into a hayloft and throw the bales down to the floor below. He says typically he would work 3 hours a day on average. Afterwards, he says he’s tired and has discomfort. Work irritates his neck pain.
[55] At his own home, Mr. Mawdsley cultivates a garden about 25 by 50 feet for vegetables. He has always maintained a garden and he enjoys gardening, but he says now putting in the garden in the spring takes much longer than previously. He says that before the accident he could have it done “in a day,” rather than the one to two weeks it takes now. The work affects his right arm, shoulders, hip and back.
[56] Mr. Mawdsley is also able to collect and split his own firewood, which is the primary source of heat in his residence, which has two wood stoves. He says he uses 5 or 6 cords of wood in a heating season. Mr. Mawdsley collects the wood himself in his pickup truck and unloads it at home. It takes 20 to 30 minutes to load the truck and 20 to 30 minutes to unload it. He is able to do one load a day. Mr. Mawdsley also cut and split wood prior to his accident, but at that time he would buy 8 foot logs and cut it with a chainsaw himself. Now Mr. Mawdsley is not able to cut wood. He can split it with a wood splitter. Before the accident, Mr. Mawdsley says he could operate a chainsaw all day. After the accident he could not operate one at all for about 2 years. Now he can only operate one for about 30 minutes.
[57] Mr. Mawdsley has a large lawn, although he could not precisely describe how large it is. It takes 2 days to mow it, which he does with a push mower. He says he can operate that for about an hour. Mr. Mawdsley also does some weed wacking, although this gives him discomfort. He doesn’t shovel snow, as he has a four-wheel drive. On one occasion this winter, he paid a neighbour to plow his driveway.
[58] Mr. Mawdsley had some renovations done to his house a few years ago when he removed the plaster lathe and installed insulation. He was not able to do the demolition work himself and hired someone to do that. He did do the insulation largely himself. He was able to paint the lower outside part of his house, but not the upper. He can’t shingle a roof as he feels he can’t climb a ladder with a bundle of shingles. He does not trust his left arm to hold the shingles while he climbs the ladder.
[59] Since the accident his left arm interferes with his sleeping. He says it impacts “big time” as he has to change position. He only gets 4 to 6 hours sleep without interruption.
[60] At trial, Mr. Mawdsley was asked about his pain on a scale of 1 to 10. He says his neck was hurting him on a scale of “4.” During trial, just before a break, he claimed that it was up to 8 out of 10. He took some Tylenol for that pain. He testified that he had been taking “Tylenol 4's and then went to 3's” because the medication made him feel nauseous. He doesn’t take any other medication.
[61] Mr. Mawdsley still has symptoms with his shoulder. He has shoulder pain and discomfort. He gets “very fatigued.” His shoulder pain is not as intense as his neck pain. He gets “tennis elbow” in his right elbow, which he says is a 10. Mr. Mawdsley said that his neck pain will sometimes develop into headaches and require him to lie down.
[62] Owing to his severed facial nerve on the right side of his jaw, Mr. Mawdsley chews on the left side of his mouth now. His diet is the same as pre-accident. Mr. Mawdsley says he is self-conscious of the scar across the right side of his face and his facial asymmetry. He suggests that his social life is not what it was prior to his injuries.
[63] Not all Mr. Mawdsley’s present difficulties flow from the accident. In recent years, like many people, he has developed low back pain. Progress notes from October 2008 diagnose him with mild degenerative discs in the L-4, L-5 area. There is no evidence that this originates with the accident.
General Damages
[64] The evidence discloses that Mr. Mawdsley continues to experience pain in his shoulders, neck, back and jaw. His sleep is sometimes interrupted. He takes Tylenol to alleviate pain. He says he has difficulty concentrating. However, x-rays taken at the time of the accident disclosed degenerative changes in the C-5, C-6 area. There is no medical opinion as to whether and to what extent these degenerative changes may be contributing to his present symptomology. Moreover, many of these symptoms are not constant, but they arise or are aggravated by work. As indicated above, he also has problems in the lumbar spine area.
[65] Mr. Mawdsley’s injuries are troubling and persistent, but not totally disabling. With the exception of lifting heavy objects, particularly over his head, Mr. Mawdsley has recovered much of his pre-injury function. He can do many of the things he used to do, although more slowly. He has pain which is manageable except when he works long and hard. But the accident has had a permanent impact on him. According to Dr. Lefebvre’s most recent report, he has now plateaued.
[66] The seminal decision in Nova Scotia dealing with injuries which are “persistently troubling but not totally disabling” is Smith v. Stubbert, 1992 N.S.J. No. 532. In Stubbert, the Court of Appeal established a “range” of general damages in such cases of $18 - $40,000. This court considered the Stubbert range of damages in Merrick v. Guilbeault, 2009 NSSC 60. LeBlanc, J. “updated” the Stubbert range for inflation to $27,000.00 to $54,000.00. In that case, an award of $45,000.00 was made, increased to $52,000.00 by way of aggravation for an unprovoked and brutal assault. Stubbert can be contrasted with the approach of Justice Moir in Marinelli et al v. Kiegen, 1998 N.S.J. No. 155, aff’d 1999 N.S.J. No. 23 (C.A.), in which the Court found that the plaintiff’s enjoyment of life had been “substantially if not totally curtailed.” In Marinelli, the plaintiff suffered severe whiplash injuries in a motor vehicle accident. She developed chronic pain which prevented her from working as a registered nurse. She could only do light housework in slow stages. She was awarded $80,000.00 (approximately $100,000.00 in 2009). In addition to these cases, the plaintiff has cited Dillon v. Kelly, 1996 N.S.J. No. 143, as well as other cases involving brain trauma. In my view, both Marinelli and Dillon involved physical injuries that had a greater impact on the plaintiffs’ life and capacity to enjoy life than is disclosed in this case. Mr. Mawdsley’s physical injuries alone, what he has endured, what he is left with and the challenges going forward, place him at the higher range of Stubbert.
Brain Trauma
[67] Mr. Mawdsley also alleges that he sustained a mild to moderate brain trauma as a result of the accident. For reasons that will become apparent, I found this a particularly challenging claim to assess. Much of the evidence on this point is less than satisfactory. However, I have concluded on a balance of probabilities that Mr. Mawdsley has suffered some mild cognitive deficit arising from the accident. In fairness, particularly to the defendants, I have carefully examined all the evidence, including the evidence tending to a different conclusion, in the discussion which follows.
[68] This issue first arose when Mr. Mawdsley was examined by Dr. Donald Haigh on October 31, 2003, more than 2 years after the accident. His examination lasted approximately an hour. The purpose of his examination was to provide the Workers’ Compensation Board with a medical opinion regarding Mr. Mawdsley’s “permanent medical impairment,” within certain WCB parameters for assessing compensation for injured workers. Dr. Haigh referred Mr. Mawdsley for a brain trauma assessment because of the nature of the injury itself (involving the head), Mr. Mawdsley’s complaints of persistent memory loss and a GCS score of eleven. “GCS” stands for Glasgow Coma Scale and is a widely recognized means of assessing patient consciousness, on a scale of 1 to 15 (15 being normal).
[69] During cross-examination Dr. Haigh acknowledged that he did not have any of the emergency records of the South Shore Hospital or the QEII noting Mr. Mawdsley’s GCS score upon admission. All he had was the QEII discharge report. That report indicates that Mr. Mawdsley’s score on admission to the ICU was 11 + “intubated.” Dr. Haigh conceded in cross-examination that this lower GCS score could well be attributable to Mr. Mawdsley’s intubation.
[70] Dr. Haigh referred Mr. Mawdsley to Dr. Ann Krane. In fact, Mr. Mawdsley was assessed by Dr. Erica Baker who happens to be Dr. Krane’s daughter. At the time Dr. Baker was a “candidate register” psychologist. This is the designated status for a psychologist during her first year of practice when she must be supervised by other psychologists.
[71] Dr. Baker assessed Mr. Mawdsley on April 19, 2004 for the purpose of determining whether Mr. Mawdsley “. . . suffered permanent psychological impairment, due to brain injury, following a work related injury.” Dr. Baker performed an 8 hour assessment which included an interview and psychometric testing. Mr. Mawdsley also completed a neuropsychological symptoms check list, the Beck Depression Inventory – II, the Burns Anxiety Inventory and the Symptoms Check List 90 – revised. In addition, Dr. Baker had in her possession the Discharge Summary Report from the QEII dated September 21, 2001, Dr. Haigh’s October 31, 2003 Permanent Medical Impairment Assessment and covering correspondence from Dr. Haigh to Dr. Krane.
[72] Although Mr. Mawdsley had a Grade X education and reported receiving average grades, Dr. Baker’s assessment was that his spelling and arithmetic skills were at a Grade IV or Grade V equivalency level. She opined that this indicated long standing and perhaps previously undetected learning disabilities. Dr. Baker concluded the Intellectual Performance Summary Report by saying:
In summary, the best picture of Mr. Mawdsley’s current intellectual function is provided by his Low Average Full Scale IQ Score (23rd percentile). Mr. Mawdsley’s current intellectual functioning is fairly consistent with his academic and vocational history. His processing speed score was somewhat lower than expected, however.
She noted a significant difference between his Perceptual Organization Index Score and his Processing Speed Index score, although a differential of that magnitude would be found in 16% of the general population.
[73] When assessing memory function, Dr. Baker said:
His pattern of performance is not consistent with what would be expected from neurologically based memory impairment. Mr. Mawdsley’s problems on some of the memory tasks could be secondary to fatigue, pain, inattention, and/or psychological distress.
She repeated this opinion in her summary of the memory function section as follows:
In summary, Mr. Mawdsley’s performance on visual memory tasks ranged from deficient to average. Once again, his performance is not consistent with what would be expected from neurologically based memory impairment. His inconsistent performance may be associated with attention problems.
[74] At trial, Dr. Baker withdrew these comments. She amended the words “neurologically based memory impairment” and inserted the words “a neuro-degenerative problem” which she said would be consistent with Alzheimer’s disease. The amendment of this error was troubling for three reasons. First of all, the error was repeated twice in the report. Second, the report was reviewed and cosigned by Dr. Ann Krane who did not testify and presumably did not notice the error; and third, there was no explanation of why a condition consistent with Alzheimer’s would be a relevant comparator for someone who had allegedly sustained some kind of brain trauma. There may be an explanation for this, but none was offered.
[75] One of the pieces of information Dr. Baker relied upon was the 11+ GCS score noted on the QEII discharge report, also mentioned by Dr. Haigh. However, she agreed on cross-examination that if Mr. Mawdsley had been intubated, this would depress his GCS score. Dr. Baker was not aware that Mr. Mawdsley had a second accident when he rolled his G.E. truck in December of 2002 and that he had been involved in a car accident in the summer of 2003. But Dr. Baker was quick to volunteer in cross-examination that these accidents were “consistent” with brain trauma because Mr. Mawdsley’s processing function had been impaired. She assumed that Mr. Mawdsley was driving and that the accidents resulted from errors by him. She withdrew this comment when advised that the cause of one accident was the stalling of Mr. Mawdsley’s truck and that he was merely a passenger in the other.
[76] Dr. Baker was not aware that Mr. Mawdsley had been struck in the head by his colt in the summer of 2003. She acknowledged in cross-examination that being struck in the head by a horse could also cause mild brain trauma. She also acknowledged that the brain could be “shaken” by whiplash type injuries from a car accident. On the other hand, Mr. Mawdsley’s medical records do not indicate that this incident, or his motor vehicle accidents had any sustained adverse effect on him.
[77] When discussing the discrepancy between Mr. Mawdsley’s perceptual organization and processing speed, Dr. Baker opined that this was a significant indicia of brain injury. She relied upon his reported work history as suggestive of an average processing speed pre-accident. However, on cross-examination, she admitted she really had no detailed knowledge of Mr. Mawdsley’s previous work history. She assumed that since he worked in a factory on an assembly line that his processing speed must have been at least average, but she did not know exactly what he did in that capacity. At page 7 of her report, Dr. Baker links what she described as Mr. Mawdsley’s impaired mental status with his difficulty in returning to work at G.E. She says “The job duties were demanding for him, and his performance was likely impacted by inconsistencies and cognitive deficits across domains of executive function and processing speed.” Dr. Baker volunteered this opinion, notwithstanding that Mr. Mawdsley did not describe cognitive problems as affecting his performance or as the reason for his leaving G.E. It was his physical inability to do the job and the resultant aggravation of his physical injuries that prompted him to quit after consulting with his physician. Indeed, that is what Dr. Baker’s notes record that Mr. Mawdsley told her. They say that Mr. Mawdsley “tried to do G.E. job because enjoyed it but physically too much.” That comment is repeated several pages further on in her notes of the interview with Mr. Mawdsley. So her own notes don’t support her conclusion on this point.
[78] In her summary, Dr. Baker says: “Evidence of mild-moderate cognitive difficulties was obtained that was fairly consistent with an acquired mild-to-moderate traumatic brain injury.” She conceded that “It is quite possible that some of the deficits presently observed may have pre-dated Mr. Mawdsley’s 2001 injury. . . . Mr. Mawdsley did not report cognitive inefficiencies prior to his accident and his neurocognitive profile suggests that mild-to-moderate traumatic brain injury, most likely, is contributing to his cognitive problems.” Here Dr. Baker puts her finger on one of the difficulties for the court. There is no objective evidence to establish a “base line” with which to compare Mr. Mawdsley’s test results as established by Dr. Baker. Essentially all that she had was her testing and Mr. Mawdsley’s reported memory and concentration problems. She did not speak to Mr. Mawdsley’s spouse, or mother, employers or co-workers about his pre-accident condition. At best, Dr. Baker can only offer the opinion that Mr. Mawdsley’s “pattern of impairment” is consistent with people with mild-to-moderate brain trauma. She cannot say what his “pattern of impairment” was prior to 2001 or whether that “pattern of impairment” was caused by the accident. There is no clinical or investigative evidence contemporary with the accident suggestive of brain trauma.
[79] Mr. Mawdsley was emphatic that he lost consciousness at the time of the accident. But this is not consistent with notes taken by others as he reported to them. For example, Dr. Baker’s notes indicate that he was “conscious.” The South Shore Regional Hospital Emergency Record on admission on September 10 indicates that Mr. Mawdsley was “talking” and had “good vitals.” He was described as “alert and aware of his surroundings.” The QEII Emergency/Trauma Report of September 24 says that Mr. Mawdsley described himself as having been “crushed but remained conscious at all times.” He was described as having a “slightly decreased” level of consciousness during transport to the QEII by helicopter from the South Shore Regional Hospital. However, he was described as responding appropriately to questions. He was never disoriented. He was responsive. His patient care record notes that he had a “total recall of events” and he had a GCS score of 14. Similarly, the September 11, 2001 QEII Trauma Assessment Report gives Mr. Mawdsley a GCS score of 15 and notes “no amnesia” and “no unconsciousness.”
[80] Dr. Baker conceded that confusion, contemporary memory loss and/or loss of consciousness would be consistent with brain trauma – although their absence would not be determinative. Likewise, when asked whether a detailed recall of events pre and post accident was a good sign of no brain trauma, she acknowledged “that helps.” Dr. Baker agreed that with a traumatic brain injury victims are worse immediately after the accident and one should see some improvement thereafter. It was rare for someone to get worse over time. In the end, however, the fact that Mr. Mawdsley was alert post-injury, does not preclude the possibility that he had sustained some brain trauma.
[81] Despite her obvious qualifications, Dr. Baker demonstrated a marked and consistent reluctance to acknowledge facts and possibilities inconsistent with her opinion. In addition to those already noted, Dr. Baker was reluctant to concede that traumatic brain injury victims are typically worse immediately post injury. And when asked about the 4 week employability enhancement programme taken by Mr. Mawdsley post-injury, Dr. Baker assumed that the programme was for individuals with cognitive difficulties and that the programme was “geared to success.” She was anxious to downplay Mr. Mawdsley’s accomplishments in this respect. But it became clear that she was really speculating and knew nothing about the programme.
[82] Quite apart from the medical records contemporaneous with the injury, no physician or medical specialist has expressed any opinion that Mr. Mawdsley suffered brain trauma as a result of the accident. There are no neurologists’ reports from which to draw that conclusion. The only neurosurgeon consulted by Mr. Mawdsley was Renn Holness who treated him for his left arm neuropraxia.
[83] Dr. Baker explained that the “norms” against which her testing of Mr. Mawdsley were based on a cross-section of the general population, not people in his particular class of the population. While acknowledging that people without neurological trauma in the general population could have the same test results as Mr. Mawdsley, she characterized this as “atypical.”
[84] It was clear from her examination and cross-examination that Dr. Baker was strongly attached to her own opinion about Mr. Mawdsley’s impairment and that it was consistent with brain trauma. She delivered her evidence quite emphatically and was quick to volunteer evidence that was supportive of her opinion, or that she thought was supportive of her opinion, even to the point of assuming that Mr. Mawdsley’s subsequent motor vehicle accidents were consistent with her opinion and caused those accidents. But it was evident that any disability he might have had was completely unrelated to those accidents. Dr. Baker’s viva voce amendment of her opinion regarding memory impairment, was also problematic.
[85] There was evidence from Mr. Mawdsley’s mother, Ms. Norma Rooth, that she noticed he took longer to respond in conversations post-accident than he did previously. But Mr. Mawdsley’s former common law spouse, who would have seen him daily, did not testify. There was no evidence of a “personality change” which the case law often notes is associated with mild to moderate brain trauma.
[86] Despite the modesty of medical evidence, there are records indicating concentration and memory loss. Dr. Lefebvre’s December 16, 2002 report to WCB notes both. And a November 12, 2003 chart note comments on problems concentrating at the computer. Mr. Mawdsley testified that he has had memory and concentration problems since the accident. At trial, Mr. Mawdsley’s evidence was occasionally slow and halting – a trait noted by both Ms. Rooth and Dr. Baker. Moreover, regardless of the occasionally tendentious viva voce evidence of Dr. Baker, her test results cannot be ignored, particularly those which note an atypical disparity between Mr. Mawdsley’s processing speed index and other indices. With respect to executive functioning testing, Dr. Baker concluded:
In summary, Mr. Mawdsley displayed inconsistent performance on tasks assessing executive functioning. Average performance was achieved on the Trail Making Test and on the Zoo Map test; mild to moderate problems were demonstrated with word fluency, on the WCST, and on the Rey Complex Figure. His performance profile was fairly typical of those achieved by individuals who have sustained recent neurological compromise.
Dr. Baker was not shaken on this opinion, nor were the tests upon which it was founded discredited in any way. Although there is no burden on the defendants to do so, they led no expert evidence questioning Dr. Baker’s testing or conclusions.
[87] While there are other potential causes of brain trauma (the car accidents and the colt incident), the medical records indicate no lasting ill effects from these events. In reviewing the medical evidence, I was particularly sensitive to cognitive complaints that might have only post-dated other possible causes of impairment and which may have followed Dr. Baker’s opinion because I wanted to rule out other causes or attempts to bolster Dr. Baker’s opinion. In fact, Dr. Lefebvre’s December 16, 2002 chart note regarding concentration problems obviously refers to symptoms predating the “roll-over” accident of that day and the follow-up chart of Dr. Lefebvre of November 2003, pre-dates Dr. Baker’s exam. I accept the evidence of Mr. Mawdsley and his mother that Mr. Mawdsley has memory, concentration and speech problems that did not predate the accident, although the problems are not severe. While her evidence was not extensive, I particularly found Ms. Rooth quite credible. There was no effort by her to overstate or embellish the cognitive changes in her son.
[88] Notwithstanding the unsatisfactory nature of some of the evidence on this point, but taking all the evidence into account, I accept that Mr. Mawdsley has sustained some mild but permanent brain trauma from his accident.
[89] I accept the evidence of Mr. Mawdsley and his mother that his memory and concentration impairment post-dated the accident, did not have other potential causes and most probably arose from the accident.
[90] I have carefully considered the authorities cited on behalf of Mr. Mawdsley with respect to brain trauma, including Dillon, Hyland v. Henneberry, 1994 N.S.J. No. 313, Jodrey Estate v. Crowder Estate 1990 N.S.J. No. 183 and Goguen v. British Columbia 2002 B.C.J. No. 2619. In my assessment, Mr. Mawdsley’s level of impairment is less serious than that of the plaintiff in any of those cases. Taking into account both his physical injuries and his mild brain trauma, I consider $100,000.00 to be a reasonable sum by way of general damages.
Past Loss of Income
[91] Mr. Mawdsley was off work due to his injuries from the accident from September 10, 2001 until July 22, 2002. Thereafter he began working at G.E., albeit performing lighter duties than before the accident. In consultation with his physician he stopped work after rolling his truck on December 16, 2002. He was looking for work again in May of 2003. Physiotherapy reports indicate at that time that he was hammering, shovelling, and doing maintenance work on his farm on a regular basis, although he was experiencing back and neck pain. But it is clear he could have done some kind of manual work.
[92] In the fall of 2003, Mr. Mawdsley worked at the Canadian Tire store in Bridgewater earning $8.00 an hour. He worked approximately 30 to 35 hours a week and his total earnings were approximately $2,500.00. Mr. Mawdsley was forced to leave because he found some of the tasks too physically demanding.
[93] Between November 2003 and February 2004 Mr. Mawdsley was off work. In February 2004 he began to work with S.H.A.I.D. Tree Animal Shelter in Bridgewater. Mr. Mawdsley earned $7.50 an hour and worked two to three 8 hour shifts per week. His total earnings at S.H.A.I.D. until he was laid off in September of 2005 were $15,660.00.
[94] Between September 2005 and December 2005, Mr. Mawdsley was off work. Beginning in December of 2005 he worked as a janitor providing cleaning services to the Canadian Tire store in Bridgewater. He earned $7.50 - $7.75 per hour doing 4 hour shifts 3 nights per week. Effective May 1, 2008, his wages went up to $8.10 an hour. Mr. Mawdsley continued working at the Bridgewater Canadian Tire store until December of 2008 when he was laid off because his employer lost the cleaning contract for the store.
[95] On January 29 and 30, 2003, Mr. Mawdsley had a functional abilities evaluation by kinesiologist Kari Countway. She concluded that Mr. Mawdsley was then functioning at a “light physical capacities level (maximum 20 pounds) for lifting and carrying activities performed below chest height.” His right shoulder limited his bilateral lifting ability above his chest to 10 pounds. He demonstrated a medium capacity (50 pounds) for bilateral and left handed upper extremity push/pull in whole body pulling activities. Right handed push/pull ability was limited to 40 pounds and he had a poor tolerance for whole body pushing activities (30 pounds on a sled without wheels). Oddly, she noted that Mr. Mawdsley’s limitations were primarily with his right shoulder and neck. There is no indication that Mr. Mawdsley’s right shoulder was injured in the accident. Reference to problems with the right shoulder only appear some months later. No opinion evidence was offered for this apparent discrepancy. Nevertheless, problems with the right shoulder appear regularly throughout the medical records from November of 2001 onwards. It may be that Mr. Mawdsley strained his right shoulder while compensating for the temporary loss of use of his left shoulder and arm, which did have obvious physical injuries resulting from the accident. In any event, I consider the compromised right shoulder to be a result of the accident, notwithstanding that there is no evidence that it was injured in the accident. I accept that Mr. Mawdsley experiences pain in that area with frequent use of his shoulder.
[96] In the permanent impairment assessment performed by Dr. Haigh on October 31, 2003, he noted that Mr. Mawdsley then was working 40 to 42 hours a week in a parts department at a Canadian Tire store in Bridgewater, as part of on the job training. His treatment regime consisted of Tylenol 3, taken as required. In passive testing, Mr. Mawdsley had limitations in his neck range of motion, the most pronounced of which was 20 degrees of flexion, as opposed to 50 degrees of normal motion. His shoulder flexion was either normal or close to normal. Shoulder abduction was 135 degrees on the right as opposed to 180 degrees normal and 112 degrees on the left. The left internal rotation of his shoulder was 50 degrees as opposed to 90 degrees for normal rotation. Virtually all other movements were normal. Strength testing was normal. Reflexes were normal. He had a diminished sensation on the right jaw and neck and around the right ear and right eye. He had a loss of sensation over the left biceps and diminished soft touch on the left thumb and third finger.
[97] Mr. Mawdsley’s pre-accident work history is consistent with the vocational assessment. He worked in building maintenance and as a janitor for a total of approximately 9 years. He worked in a cheese factory for 6 years. He drove a tractor trailer and subsequently a taxi, for a total of 2 years. He had worked on concrete coring for 4 years and installing tile drainage for 3 years. He was an automobile detailer for approximately 3 years. After these occupations, he drove a garbage truck for G.E. until the accident.
[98] Since the accident he has been an animal care worker and has worked as a janitor. He also worked at the Canadian Tire store and at G.E. for a period of time. He now is a seasonal worker, caring for a neighbour’s barn and animals, as previously described. It is clear that his sustained periods of employment were soon after the accident and were sponsored by WCB. Mr. Mawdsley was cooperative with WCB. and it was in his financial interest to do so. On the evidence, he has not been as diligent as he might have been in seeking employment unassisted by WCB. He does not seem to have made much effort to resume his previous occupation of driving vehicles, despite both an ability and an interest in doing so. Although he enjoys working with animals, he does not seem to have pursued permanent employment in that field.
[99] There is no medical evidence that Mr. Mawdsley cannot work at least in a job that requires light physical activity in fields in which he has experience. The functional and vocational assessments done under the auspices of the WCB don’t identify shortcomings that would prevent Mr. Mawdsley from working a 40 hour week, provided he was not required to do work involving heavy lifting.
[100] Based on all of the evidence, I am satisfied that Mr. Mawdsley was able to work full time by June of 2003, although he could not do some of the heavier work that he had been doing. He was able to work full time for 6 months at G.E. in 2002 and several months full time at Canadian Tire. In both cases it was not the length of the work day that caused him to quit, but the physically demanding nature of some of the tasks he had to perform. Given his past training and experience, I would have thought he could have obtained full time work by June of 2003 that was less physically demanding than previously, but would have paid him comparable wages. Mr. Mawdsley’s experience as a driver and affinity for animals suggest alternate types of employment that he could have more assiduously pursued. In the result, I consider it reasonable to calculate his income loss to June of 2003.
[101] Mr. Mawdsley’s past lost of income covers the period September 10, 2001 until April 19, 2002 (when he resumed at G.E. full time) and again from December 16, 2002 until June 30, 2003, by which time he should have been able to return to work full time. For the purposes of calculating his past loss of income, I have used the table at page 5 of the actuarial report of Paul Conrad. This shows a loss of income in 2001 of $6,103.00 and in 2002 of $11,845.00. Using June 30, 2003 as an end date for the calculation of loss of income, Mr. Mawdsley would have lost $9,193.00 in 2003. The total of these amounts is $27,141.00.
Future Loss of Earnings/Diminished Earning Capacity
[102] A very useful review of the issue of diminished earning capacity can be found at ¶ 53 to 77, inclusive of Leddicote, supra. Obviously in a case of total disability, the calculation of future loss of income becomes easier and more certain. In these cases, actuarial evidence can be particularly helpful, while not always taking into account the contingencies that can affect such calculations. In this case, Mr. Mawdsley is not totally disabled. Moreover, he is capable of working so as to replace his pre-accident income, although he has not done so. Even assuming however that his income had returned to pre-accident levels, his injuries are lingering. For a man who depends on manual labour for his income, his injuries are bound to have some adverse impact on his future earning capacity.
[103] To quote Saunders, J.A. from Leddicote, supra, it is important to distinguish between “function” and “capacity.” A physical impairment affects function, but it may not adversely affect the ability to earn an income. The two are not synonymous. However, in the case of someone like Mr. Mawdsley, a lingering physical impairment can limit the nature and type of future employment. Taking into account Mr. Mawdsley’s injuries, his work history, his prospects and aspirations, I consider it likely that there will be some ongoing impairment of his ability to earn an income in the future. However, the quantification of same is necessarily uncertain and imprecise. I reject the actuarial evidence tendered because its assumptions do not accord with the evidence. However, the actuarial report is useful at least in providing an “upper end” calculation, assuming virtually total disability. Using an annual residual earning capacity of $5,460.00, the actuarial report calculates loss of future income to age 65 at $285,000.00. The task for the court is not a simple mathematical calculation, but rather a consideration of how Mr. Mawdsley’s present limitations could adversely affect future earning opportunities and ultimately income. Quoting again from Leddicote:
[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.
[104] On January 23, 2003, Mr. Mawdsley was assessed by Clarior Consulting for a vocational rehabilitation assessment. This testing established that Mr. Mawdsley “learned by doing” and was good at and enjoyed occupations requiring “hands-on” skill sets, resulting in observable accomplishments. In considering the appropriate type of work for Mr. Mawdsley, Clarior indicated that driving heavy vehicles was an option for which he was suited by temperament, training and experience. But his ability to return to G.E. would depend on his capacity to physically tolerate that work.
[105] I refer to paragraphs 95 to 100 above addressing Mr. Mawdsley’s post accident capacity for work. The evidence establishes that he can work full time but at less physically demanding jobs than before the accident.
[106] Notwithstanding Mr. Mawdsley’s mild brain trauma, I do not consider that this has had a significant impact on his earning capacity. His vocational abilities both pre and post accident have been in the area of “hands on” manual work. But it is still likely to have had some impact, particularly because he cannot work as vigorously as before. Keeping in mind that his overall condition does compromise earning capacity, I would fix damages for diminished earning capacity at 20% of the actuarially calculated total of $285,000.00 – i.e., $57,000.00.
Cost of Future Care
[107] Although this is a claimed head of damage, there was no evidence before the court to assess the cost of future care. Mr. Mawdsley requires the periodic relief afforded by Tylenol. Otherwise, there is no indication he will require further medical treatment. The only award justifiable under this category is medication for pain relief, which I assess at $1,000.00
Loss of Housekeeping Capacity
[108] The leading case setting out the criteria to establish such a loss is Carter v. Anderson, 1998 NSCA 76. In that case, Roscoe, J.A. made it clear that in appropriate cases, it is a discrete pecuniary head of damage. At ¶ 26 she said in part:
. . . Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past. The award for lost capacity should not simply be part of the non‑pecuniary damages as “an element of loss of amenities”. Housekeeping capacity is ordinarily not an amenity. Its loss is not an intangible loss comparable to the appellant‘s loss of ability to dance, to skate . . .
[109] Saunders, J.A., described entitlement to this relief as follows in Leddicote, supra, at ¶ 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. . . .
[110] Mr. Mawdsley did not indicate that he was unable to do normal housekeeping duties. He did say that all of the tasks he formerly performed took longer and could cause pain. He gave as an example working in his garden in the spring. But he is able to do that work. He is able to mow his lawn. He is able to do many things around the house which the plaintiffs in most of the reported cases are utterly unable to perform. He did provide a few examples of where he has required help. First of all, when he insulated his home, he required assistance to take out the plaster and lathe work. He could not do this himself, although he could insulate the house. As well, he said that he was not able to paint the upper part of his house, although he could paint the lower part. Although he did not describe his house as requiring roof repair, he said he could not do it himself. He did have his driveway plowed this winter (he does not shovel). With the exception of snow plowing, all of these tasks go beyond normal housekeeping. They are not things that habitually and regularly require doing. Nevertheless, they are things that Mr. Mawdsley himself could have done prior to the accident. They would require doing periodically. Mr. Mawdsley’s loss under this heading is not readily calculable on an hourly or weekly basis. He may need some assistance to do maintenance on his house in the future. He may need some help plowing and shovelling.
[111] In all of the circumstances, I would make a modest award of $5,000.00 under this heading.
Special Damages/Disbursements
[112] The parties agree that the WCB has a subrogated claim for $40,918.62, comprised of $35, 671.89 for medical disbursements and $5,246.73 for vocational rehabilitation expenses.
Conclusion
[113] Based on a finding that Mr. Mawdsley is 60% liable for the accident, I award him damages of $92,423.85 calculated as follows:
General Damages $100,000.00
Past Loss of Earnings 27,141.00
Future Care Costs 1,000.00
Loss of Housekeeping Capacity 5,000.00
WCB Subrogated Claim 40,918.62
Diminished Earning Capacity 57,000.00
$231,059.62
TOTAL: 40% of $231,059.62 $ 92,423.85
[114] Mr. Mawdsley is also entitled to prejudgment interest and costs. If the parties are unable to agree on these, I will hear submissions on same.
Bryson, J.
SUPREME COURT OF NOVA SCOTIA
Citation: Mawdsley v. McCarthy's Towing and Recovery Ltd.,
2010 NSSC 168
Date: 20100519
Docket: Hfx No. 203216
Registry: Halifax
Between:
Carl Mawdsley
Plaintiff
v.
McCarthy’s Towing & Recovery Limited and
Byron McCarthy
Defendants
E R R A T U M
Revised Decision: The text of the original decision has been corrected according to the attached Erratum (May 26, 2010).
Judge: The Honourable Justice Peter Bryson
Heard: February 8, 9, 10, 11, 15, 16 &17, 2010,
in Halifax, Nova Scotia
Decision: May 19, 2010
Counsel: John Shanks & Christopher Madill, for the Plaintiff
Jean McKenna & Sarah Kirby, for the Defendant
Erratum:
[1] At paragraph 113 the amount of $94,543.85 should read $92,423.85.
Bryson, J.