CANADA PROVINCE OF NOVA SCOTIA 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS HEARD: at Truro, Nova Scotia, before The Honourable Mr. Justice Walter R. E. Goodfellow, Trial Division DATES: November 26 and 27th, 1991 DECISION: November 27, 1991 (Orally) COUNSEL: R. Malcolm MacLeod Robert K. Dickson, for the Plaintiffs Scott Norton, for the Defendants CANADA PROVINCE OF NOVA SCOTIA 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS Goodfellow, J. (Orally): Shawn Edward Nicholson, born October 24, 1969, was operating a 1984 Suzuki motorcycle on the 13th of May, 1988 when he and the motor cycle came into contact with a dump truck driven by Darrell R. MacRae, an employee of the Province of Nova Scotia. The dump truck was owned by the Department of Ariculture and Marketing. At the commencement of the trial, agreement was reached assessing liability at 75% on the defendants and 25% on the plaintiff, Shawn Edward Nicholson. Further agreement was reached on the special damages; the motor cycle loss was agreed at $1,950.00 and past loss of net income of $1,720.00, under Section "B" coverage of the insurance policy. BACKGROUND Shawn Edward Nicholson described how his injuries were incurred. While overtaking the dump truck, it turned left and his right side came into contact with the dump truck. He rolled over the hood of the truck, travelled 25 to 30 feet, landing in the ditch in mud and grass. His initial reaction was to feel sharp pain in his back and he feared paralysis. Shawn noted his pants were ripped at the right knee and blood was coming from wound in that area. At the time of the accident shawn was the lead motorcycle to his friend Scott Harris. Shawn told Scott to call his mother and tell her he was "OK". Shawn remained conscious throughout. He was taken to the Colchester Hospital by ambulance and treated there for his injuries. His family doctor, Dr. A. C. H. Crowe, as alerted and Dr. Crowe attended at the Colchester Hospital and examined Shawn in the emergency room. Dr. Crowe's medical report of October 17, 1988 was entered into evidence by consent and the plaintiffs also called Dr. Crowe to give evidence. His report and evidence is that Shawn suffered a posterior dislocation of his right hip, a compound injury involving his right knee with a disruption of the medial collateral ligament and a fracture of his third right metacarpal in the right hand. The latter is the bone extending from the knuckle into the hand. Shawn was taken to the operating room where closed reduction of the dislocated hip was performed. He had debridement and medial collateral repair to his right knee. Dr. Crowe described the injury to his hand as "inconsequential". The next day, May 14th, he was sent to the Victoria General Hospital in Halifax under the care of Dr. D. I. Alexander, an orthopedic surgeon. On the 17th of May 1988, Dr. Alexander examined Shawn's right knee and right hip under anesthetic. He found the right hip to be stable with no surgery required. He also found the right knee to be stable with mild instability of the medial collateral ligament with no other major ligamentous injury. With respect to the fracture of the right hand, Shawn was referred to Dr. Patelz, plastic surgeon. Dr. Patelz last examined Shawn at the plastic surgery clinic on the 29th of June 1988. It was felt that his fracture had healed and that there was no likelihood of there being any long term problems with his hand in the future and he would have normal function. On the 25th of May, Shawn was discharged back to the Colchester Hospital and finally discharged from the Colchester Hospital on the 2nd of June. During his hospital stay, physiotherapy was commenced with passive machine. His hospitalization totalled 22 days. Shawn returned home from the Colchester Hospital where his mother, Judith Ann Nicholson, set it up so that he could be in the family room. Within week he was taking physiotherapy at the Colchester Hospital twice week and this continued for three weeks to month. Initially he used two crutches. His mother described the right crutch. His right and to the elbow was in cast and the right crutch had an extension so the pressure could be taken at the elbow. After two weeks on two crutches, one crutch for one and half weeks and cane for most of the remainder of the summer. It was approximately 90 days from the date of the accident before Shawn was ambulatory without assistance. Mrs. Nicholson described Shawn on his return home from the Colchester Hospital on June 2nd, 1988 as frustrated, particularly by his very restrictive movement and pain. Shawn used passive machine for therapy at home, rented from Doncaster Medical Supplies and every increase in the degree of movement achieved was accompanied by pain. At the time of the accident Shawn was in Grade XII at Cobequid Educational Centre. His plan was to complete Grades X, XI and XII in four years and this was not interrupted by his injuries. Taking four years was, as he said, "going to happen anyways". He did not have good academic record in Grade X. He had trouble with math and stayed away from the sciences. The accident was May 13th, 1988 and with the help of friends and teachers he completed his year by oral examinations and achieved Grade XII average of 63%. Shawn went to work for week in the latter part of August of 1988 with Miller Excavators and he was driving an excavator which is like backhoe, but considerably bigger. When he returned to high school in September 1988, physically he did not have too many problems. His mother, in her evidence, indicated Shawn would be late for some classes when required to go to class at the other end of the school building on another floor. In the summer of 1989, Shawn worked on maintenance at the Glengarry. Mrs. Nicholson said Shawn's hip and knee were still sore and were worse at the beginning of the 1989 summer. She said Shawn did lot of landscaping in the spring and continual outdoor maintenance for which he was in pain most of the time. In the fall of 1989 Shawn enrolled at U.N B., Fredericton, New Brunswick, in the Faculty of Arts. he had applied for Business Administration but was not accepted because of his math deficiency. He was enrolled on academic probation and in his first year achieved little less than "C" average. In the summer of 1990 he was employed in maintenance at the Glengarry, which included: mowing lawns cleaning pools setting up convention requirements working in the kitchen working on banquets physically returning beer empties and restoring liquor general maintenance, filling in and painting. The activity that troubled him most was carrying beer bottles and liquor supplies downstairs which caused soreness in his hip. He also found setting up tables and chairs involved quite bit of walking and was strenuous somedays, producing limp. The Glengarry is very large spread out complex and at the end of the day he found his hip was usually sore. The soreness was directly related to the activities of the day. His mother confirmed that in the summer of 1990 Shawn physically handled the maintenance and that Shawn was not reluctant to take on the responsibilities but it produced, from her observation, good deal of pain. She said that at the end of day of painting, Shawn would be in pretty bad shape and would be limping very noticeably. Staff members would comment to her about the limping. In September 1990 Shawn returned to U.N.B. He worked very hard on his studies but was unable to achieve as good result as his first year and in April 1991 he was academically required to withdraw from the university. In his first year at U.N.B. Shawn was involved in intra mural soccer indoors, playing Tuesday and Thursday for month on his residence team. In his second year he played snow football, which is tackle football in the snow without wearing protective equipment. He skied once in his first year but was in pain the next day. He did weight lifting twice week both years at U.N.B. with great frequency in his second year. He would do squats which required deep knee bending and then rising lifting weights behind him on bar. He would do sets during to 1k hour workout and lifts weights to maximmum of 220 lbs. Shawn was examined on Discovery in March of 1991 and asked if there were any sports he did before that he does not now and replied, "No, no", He says that now that he played rugby in his first year of Grade XII and did not play after the accident as the doctors said he should not. He does, however, go on to say that he does not miss rugby lot and is not upset about no longer playing it. Shawn did ski before the accident, but there is no evidence of the frequency. Shawn still water skis, weight training and drives his mountain bike in the evening after work. He played softball once, for the motel team, since the accident. With respect to water skiing he skis on one ski. After Shawn returned home in the Spring of 1991, he decided to try change from the family business where he had worked for years. He wanted to prove to himself that he could get employment elsewhere. This is but one of the many examples of the strength of character of this young man. Shawn went to Coupar's Nursery seeking employment as he knew he would not be returning to university. He was hired immediately and started work the next day. His work included raking leaves, sodding, building lawns, building patios, planting trees, digging ditches, etc. He remained in the employ of Coupar's for approximately months. Kevin Paul MacNaughton, the landscape architect for Coupar's Nursery, gave evidence that there was no problem with Shawn's work ethic, that he had the ability to do the work required and was always capable. He would have liked Shawn to continue his employment with Coupar's. About two weeks before Shawn left Coupar's he told Mr. MacNaughton that he had experienced some pain pretty well every day and that he was not sure how long he could continue. Mr. MacNaughton had seen Shawn limp the odd time. Jack Coupar, the owner of Coupar's Nursery, said Shawn's work record was good and Shawn missed very little time. He described Shawn as clean cut, hard working, responsible person and that Shawn's real problem was in the evening with pain. Shawn left Coupar's just before July 15th, 1991 and week later became involved in project with his father. He is turning house into 4‑unit apartment building and anticipates residing in the unit on the third floor. He is the main contractor and has been physically involved including participating in ripping out walls, tearing down ceilings and gyprocing. The existing concrete basement floor has to be broken up and removed in 5‑gallon pails. Shawn has been on the job site every day and at the end of the day he takes load to the dump. He anticipates for the most part the job will be completed by December 1st. Also, the Glengarry has an uptown development whereby it is changing two buildings into restaurant, lounge and tavern. The buildings were warehouse and store and Glengarry has had to tear down walls, make doors, strip ceilings, etc. The work is very extensive and Shawn goes to the dump four to five times day. His father is the general contractor for the project and Shawn is the helper. Shawn said, "I do more of the hard work". Shawn does some rather surprising physical activities. He has used jack hammer and helped in such areas as unloading and carrying sheets of gyprock to the second floor. He described his work on this project as hard, but not as hard as when he worked at Coupar's. At the end of the day his hip will be sore depending on the activity of the day. His knee also is bit of problem about once week. At the most, he experiences sharp pain and feels there is considerable difference between his right leg and his left leg. It would appear that he can handle certain measure of physical activity without too much trouble but continual physical activity as required with his employment at Coupar's is recipe for almost certain pain that evening. On the subject of pain and suffering, do note that Dr. Alexander, the orthopedic surgeon, in his report of November 20th, 1989, stated: "Things have continued to improve and in the summer of 1989 he basically was fairly asymptomatic and in September of 1989 he enrolled at UNB in the faculty of Arts. His extracurricular activities include weight lifting, soft ball and some other non‑contract sports, however, when he does try to do vigorous activities he does get pain in the right hip and right knee area. He also notices that damp weather bothers him, however, the pain is never so severe that he has to take medication." In the period of over three years since the accident, Shawn obtained only one prescription for pain and did not utilize the supply obtained in that prescription. He also tried Tylenol but found this did not help and tended to put him to sleep. Shawn also gave evidence of some concern with respect to his personal sex life as personal physical activities can bring on pain causing cessation of the activities. As young man this is matter of some concern to him. ASSESSMENT OF DAMAGES The two issues to be decided are: 1) The assessment of non‑pecuniary damages, and 2) What future pecuniary loss has been suffered by Shawn and the compensation for such loss. 1. Non‑Pecuniary Damages Dealing with the non‑pecuniary damages that is, for past and future pain and suffering and loss of amenities have been referred to number of cases, all of which have reviewed. No two cases are identical because no two human beings are identical and even where you have identical injuries, which cases are very rare, they are still only guide because identical injuries will impact differently on different people. The decision of Poirier v. Dyer, 91 N.S.R. (2d) 119, does have some similarities. However, it does not have the personal concern Shawn is faced with. Overall the injuries suffered by Anthony Poirier, who was 17 at the time of his accident, were more serious than Shawn's and required much more prolonged period of extensive medical treatment. The injuries received by the young Poirier boy are related in paragraphs to 11: "(3) On admission, the initial concern was the restoration of circulation in the right leg. He was stabilized in the emergency department and placed in splints and traction and prepared for emergency surgery. It was necessary to debride the wound in the leg and clean away dirt and dead tissue. The fractures to the tibia and fibula were aligned by external fixation and he was placed in balanced traction for the femur fracture. (4) On December 13th, 1985, the young lad was again taken to the operating room for further debridement and fixation of the unstable ankle fractures. (5) The third operation occurred on December 20th., 1985, when an intramedulary nail was inserted in the right femur and skin grafts effected. (6) On December 27th, 1985, further skin graft over the tibia took place and the right knee was manipulated. This latter procedure was carried out because, with fractures above and below the joint, the knee joint can become contracted. (7) Before his discharge from the hospital, the young plaintiff underwent further operative procedures including further manipulation of the knee and removal of the fixation on the tibia. (8) Tony was seen in the orthopedic clinic every six weeks until the end of 1986 and about every four months since that time. By April 1986, the fractures were healing but there was considerable restriction of movement of the knee. He underwent an agressive physiotherapy program but his flexion remained at limitation of 95º. Flexion of 130º is normal. (9) In may 1987, Tony was again readmitted to hospital to undergo surgery to improve the range of motion in the knee. Physiotherapy continued after discharge from hospital and although there was some temporary improvement, the restriction has returned to 95º and now there are minimal signs of arthritis in the knee. (10) The ankle healed well and there are no residual problems with the ankle. The hardware was removed in late 1988. (11) At this time, the residual problems related to the knee. It is described as "floating knee" and it cannot absorb shock. The leg turns in slightly and there is 3/4 inch leg length discrepancy. Tony said he limps during times of poor weather and he has pain when he bends his leg. His activities before the accident included bicycle riding, baseball and football in an unorganized fashion. He didn't deny he could still participate in these activities but with more effort and less satisfactory results." The above paragraphs indicate that Anthony Poirier required series of operations and skin grafts and very extensive medical treatment. The plaintiff also refers to number of cases including Sabbas v. Golobic, decision of the British Columbia Court of Appeal, November 15, 1989. In this case an 11 year old girl suffered injuries, the main one being dislocated hip. The Appeal Court did not interfere with the trial judge's award of $65,000.00 for non‑pecuniary damages. The medical reports of Dr. Alexander cover the period of hospitalization on May 14, 1988 to the V. G. Hospital and to the fall of 1989 when Dr. Alexander repeated x‑rays. Dr. Alexander gave letter of clarification in September of 1990 regarding his report of August 8, 1990 on the subject of pain and suffering. Dr. Alexander in his report of August 8, 19990, commented: "When reviewed him on this occasion he told me that there had been some worsening in his symptoms in both his hip and his knee. He told me that walking for long distances would cause his knee to become quite sore and would cause him to limp and he finds that prolonged standing on his feet also bothers him quite bit. He denied, however, any locking, giving away or swelling of the knee joint. With respect to his hip his complaints are those of sharp pain in the superior aspect of the hip area and although it has not been major problem it has been source of concern to him. he has described snapping feeling and sharpness with certain twists of his right hip." Shawn is an impressive young man and he has suffered and will continue to suffer pain in the future. do not think the medical reports reflect the extent and the frequency of pain that Shawn has suffered. His industry and energy have kept him active but at price. accept the evidence of both Shawn and his mother as to the frequency and extent of the pain. It is never an easy job to determine proper compensation for non‑pecuniary damages and in doing the best can; assess Shawn Edward Nicholson's damages at $41,000.00. 2. Future Pecuniary Losses The most difficult area of assessment is for future losses. It requires projection into the future from evidence which is available in the present. In this case, can look to medical evidence to project future limitations on Shawn's physical capacity for employment, to his past work experiences to project limitations on the scope of his employment, and to his family and employment history to project his employment opportunities. Dr. Mahar, in his report of August 16, 1991, had the benefit of all the previous medical reports, x‑rays, etc. In addition he had CT scan of the right hip obtained June 3, 1991 and on page of his report he quoted from that: "On the right side, there is mature new bone formation arising from the acetabulum posteriorly and extending along the posterior acetabular margin. Just inferior to this level and posterior to the femoral heads are several small corticated ossific fragments within the soft tissues above the hip. These findings are presumably post‑traumatic. The femoral head is concentrically seated in the acetabular fossa. There does appear to be definite narrowing of the posterior aspects of the joint with sclerosis and subchondyral cystic change evident in the acetabulum, particularly anteriorly. These finds (sic) are consistant with an element of post‑traumatic osteoarthritis. There is at least one interarticular osseous fragment in the acetabular fossa and there are two smaller ossific fragments medial to the femoral neck which may as well be interarticular." Dr. Mahar's conclusion is: "This reveals then degenerative change within the hip joint or arthritis as evidenced by narrowing at the joint, sclerosis and cystic change. Sclerosis is increased density of bone which occurs due to altered mechanical forces or weight bearing and cystic changes diagnostic, in association with his other problems, of post traumatic osterarthritis." Dr. Mahar also found decreased range of motion in the right hip. Dr. Mahar believes further hip surgery is likely and that Shawn will develop progressive degenerative disease of arthritis over the next 10 years. In his report, Dr. Mahar says at page 7: "This man has had significant injury to the right hip. He has, at time years after his accident, developed degenerative arthritis within the hip joint. There is no evidence, to date, to suggest that he will develop avascular necrosis or death of the femoral head, complication which occurs in 20 percent of posterior dislocations if reduced within few hours and 50 percent if left for longer than that period. He continues to complain of discomfort, which after an initial improvement following his injury has become more troublesome. He demonstrates restriction in range of motion of the right hip, (flexion, abduction, internal and external rotation). This restriction would represent decrease in range from that described by Dr. Alexander, from his last examination of November 1989 (18 months before this examination). Given this change in physical findings, increase in complaints of pain, believe this man will develop progressive degenerative disease or arthritis over the next 10 years." see Dr. Alexander did not have the benefits of the findings of the physiatrist, Dr. Mahar, or the further radiological evidence. Mrs. Nicholson gave evidence of the family business and its requirements. Shawn has been involved since he was about years of age and indicates an intention to make his future in the hospitality industry. Indeed, he has obtained wealth of experience and training from his family background. This is not a case where evidence has been adduced showing a history of income and the interference in that income capacity due to the injuries. There is no evidence of Shawn\'s projected income from the family business and I appreciate the difficulties in adducing such evidence. Nevertheless, it must be recognized that to succeed in claim for dimunition of future income there is an onus to establish some evidence, such as actuarial evidene as base which can be used as guide to the calculation of the loss. Actuarial evidence should only be received where there has been evidence placed before the court which establishes with reasonable certainty the hypothesis on which the actuary is to make his calculations. Such situation exists where there has been total disability and it is clear that the plaintiff will not be in position to earn income in the future. Such situation also exists where it can be said from an appraisal of the evidence that there was reasonable probability of the course of employment open to the plaintiff if the accident had not happened and reasonable probability that the employment the plaintiff will be forced to take because of the accident will involve loss of wages in the future, which loss can be calculated without recourse to speculation or conjecture. Mrs. Nicholson recited the desire for the family business to continue and that she and her husband will be thrilled if Shawn wants to be part of Glengarry. Mrs. Nicholson says that Shawn has grown up in the business and has feeling for it. share her assessment of her son's personality. He projects very personable individual who have no doubt relates easily with other people. Employment in the hospitality industry would appear to be one that he is admirably suited for. Shawn will have difficulty with his hip in the future and have addressed as best can the pain and suffering and the loss of interference with his life style and amenities, particularly for young man, in my award for non‑pecuniary damages. do not think the plaintiff has established dimunition for which actuarial evidence is of any assistance. Shawn does have reduced capacity for his chosen employment and he has limitation as to the fields of employment should he ever be required or desire to leave the hospitality industry. Essentially though, think as best can judge it in all probability his future will unfold as planned. I am satisfied that by reason of his hip injury his employment opportunities are less than they were before the accident and in that sense he has suffered a loss of a wider employment horizon. He has suffered a reduction in his capital asset and in the breadth of his employment opportunities and he is entitled to be compensated therefore. There will also be financial consequences for him in the hospitality industry. In all probability he will face periods of financial expenditures for physical assistance related to his own limitations from time to time. Such loss is very difficult to quantify. I consider the only appropriate way to compensate him is to award a lump sum for this loss which is separate and apart from the non‑pecuniary damage. For the restriction in future employment and financial consequences that will follow from that, I award further compensation of $21,000.00 CONCLUSION The plaintiff, Shawn Edward Nicholson, recovers 75% of the loss of income net of Section "B" coverage agreed in the amount of $1,720.00 with prejudgment interest at 3/4% from the 1st of August, 1988. General damages for non‑pecuniary matters of $41,000.00 with prejudgment interest at the agreed rate of 9 3/4% from May 13, 1988 and general damages related to future income losses of $21,000.00 from which there is no entitlement to prejudgment interest. will now adjourn for 15 minutes to give counsel an opportunity, if they can, to address the matter of costs, failing which will hear counsel and try to deal the matter of costs and disbursements. J. Truro, Nova Scotia November 27, 1991 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS DECISION OF GOODFELLOW, J.
A 19 year old motorcyclist collided with a dump truck and suffered a dislocated hip, knee injuries and a minor hand injury. He was hospitalized for 22 days. Three years after the accident, continued physical activity caused him pain. Further hip surgery, as well as progressive degenerative arthritis, was likely. Awarding the plaintiff $21,000 for future pecuniary loss, that his employment opportunities were less now than before the accident and he was entitled to lump sum compensation. No weight was given to the plaintiffs actuarial report since there was no history of income and no evidence of projected income from the family hotel business in which the plaintiff was expected to continue. Non-pecuniary damages of $41,000 were awarded.