In our first case this month, the Court of Appeal significantly reduced an award for loss of valuable services.
Our second case this month deals with the production of RCMP investigative reports.
In our third case, the Court of Appeal explains “material change in risk” and where the onus of proof lies
Furlotte v. Elward, 2011 NBCA 95
In 1997, the parties were involved in a minor vehicle accident. Damage to the vehicles was minimal, and neither party called the police. The appellant, then a practicing lawyer, began to feel pain a day or two after the accident. He sued for damages in excess of $4,000,000, but at trial was granted judgment for $104,500, including an award of $74,500 for loss of valuable services.
The appellant appealed on ten grounds, with five of them relating to the admissibility of medical evidence. The respondent cross-appealed, seeking to strike or reduce the award for loss of valuable services.
The Court of Appeal found all the experts and their qualifications had been agreed upon by both parties, and there was abundant evidence to adequately support the factual background against which the medical experts expressed their opinion. Given the high standard of review and the deference owed to a trial Judge for findings of fact, the Court of Appeal was not prepared to interfere with the trial Judge’s findings, except in one respect, targeted by the respondent’s cross-appeal.
The Court of Appeal stated as a general rule that loss of capacity to perform valuable services should be allowed as special damages for the pre-trial period, only if the plaintiff establishes three things on a balance of probabilities:
1) the plaintiff was disabled by an accident-related condition from performing the task for which a claim is made;
2) but for the accident, the plaintiff would have performed the task in question; and
3) what it would have cost to have a professional service provider perform the task.
The Court of Appeal also stated that it makes no difference if the task was not performed, or if it was performed for free or at a discount from a family member or friend. Such an award is designed to fairly compensate a plaintiff for his or her loss of capacity to perform the task in question.
At trial, evidence was produced supporting two different scenarios for the valuable-services award. The respondent had asserted awards should be based on the annual rates for professional non- corporate service providers as calculated by Statistics Canada ($11,448), while the appellant asked for an average of rates provided by three local, professional corporate service providers in New Brunswick ($30,265). The trial Judge had chosen the larger rate based on local service providers.
The trial Judge did not give sufficient reasoning for choosing the higher of the two rates. The respondent had hired a expert in the cost of care and valuable services, while the appellant had not. The Court of Appeal held the award in excess of the lower amount constituted a windfall which could not be sustained even by application of the most deferential standard of review.
Accordingly, the Court of Appeal allowed the cross-appeal and substituted the lower rate, resulting in a reduced award of $28,500 for loss of valuable services.