CDL Defensible Positions Case Law Update Newfoundland and Labrador

Transcription

1 CDL Defensible Positions Case Law Update Newfoundland and Labrador Jillian Kean May 10, 2018

2 Jadhav v. Kielly, 2018 NLSC 97 Ryan v. Curlew, 2018 NLSC 72

3 Jadhav v. Kielly, 2018 NLSC 97

4 Jadhav v. Kielly, 2018 NLSC 97 Adverse Inference [21] The Defendant did not testify at the trial. Counsel for the Plaintiff has asked that the Court draw an adverse inference on account of the Defendant not having been produced to give testimony to the Court. Counsel for the Defendant argues that he advised Plaintiff s counsel that the Defendant could be made available for the purposes of cross -examination, but that the Plaintiff s counsel chose not to call upon the Defendant. He argues that, under those circumstances, no adverse inference ought to be drawn.

5 Jadhav v. Kielly, 2018 NLSC 97 [22] Plaintiff s counsel drew my attention to the following passage from The Law of Evidence in Canada, Sopinka, Lederman & Bryant : In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party s case, or at least would not support it.

6 Jadhav v. Kielly, 2018 NLSC 97 [23] No explanation was given as to why the Defendant did not testify at trial. He was the only person with a memory of what had taken place. However, as desirable as it may have been to have him give viva voce testimony in court, I am not prepared to draw an adverse inference against him. [24] My reasons for doing so are twofold: Firstly, that defence counsel offered to produce the witness should Plaintiff s counsel have desired to cross examine him. And, secondly, because there is no property in a witness. In the absence of Defence counsel s offer, Plaintiff s counsel could have subpoenaed the Defendant and forced him to testify as an adverse witness.

7 Jadhav v. Kielly, 2018 NLSC 97 [96] The Plaintiff is capable of working in a sedentary occupation There are many jobs that, owing to the marvel of the Internet, people can now do from home. Many of those opportunities would pay substantially in excess of the almost minimum wage that the Plaintiff was earning prior to his accident. [97] The assumption that the Plaintiff is incapable of any work is erroneous, and I reject it. I am not prepared to make an award for loss of future income based upon the actuarial report for the reasons I have noted and, as well, because of the award I intend to make in relation to retraining. Once the Plaintiff has the benefit of that retraining, there is no reason why he would not be able to earn an income considerably in excess of what he was earning at Burger King. [101] In my opinion, however, the sum of $60,000 is necessary to offset the cost of living, transportation and tuition for a two year study program and I award that sum

8 Jadhav v. Kielly, 2018 NLSC 97 Head of Damage Amount General damages for pain and suffering $150, Earnings to the end of 2017 $60, Future loss of income No award Retraining allowance $60, Housekeeping $67, Future care costs $36, Special damages $2, Management fee No award Reduction for contributory negligence at $37, % Adjusted award $338,097.19

9 Ryan v. Curlew, 2018 NLSC 72

10 Ryan v. Curlew, 2018 NLSC 72 [ 44 ] [The Supreme Court of Canada offered the following] approach to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident : It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed : Fontaine, paragraph 27. [45] Applying that approach to this case, I find that Juanita Ryan has proved, on a balance of probabilities, a prima facie case of negligence against Bernice Curlew; for which Ms. Curlew offered no evidence negating the proof that Ms. Ryan offered.

11 Ryan v. Curlew, 2018 NLSC 72 [133] I believe that Ms. Ryan deliberately withheld the details about her vacations until it was evident that she was not going to put counsel off by stonewalling him. Even then, she answered his questions minimally so that he had to push her repeatedly until she acknowledged more details. This typified Ms. Ryan s demeanour throughout her crossexamination. Overall, I took this impression away from her testimony: She minimized the positive aspects of her life since the accident and exaggerated the negative aspects, possibly to enhance her claim. [135] I also find that Ms. Ryan has exercised deliberate control over her treatment program. She has been heavily assessed by all manner of health and related personnel since the accident in Those personnel have recommended physiotherapy, psychotherapy, pharmacotherapy, psychiatric care, aqua therapy, acupuncture, counseling and a simple home exercise program. Ms. Ryan has availed of some of these therapies but only those that she wants to avail of and only when she wants to do them.

12 Ryan v. Curlew, 2018 NLSC 72 [186] Thus, the CPP benefits of $48,904 that Ms. Ryan received between January 1, 2012 and November 14, 2017 will be deducted from any award I make for past loss earnings; as will the $57,280 she received from her Section B insurer between January 11, 2010 and November 14, 2017, the $100,544 she received in monthly payments from Manulife between January 11, 2010 and January 1, 2013 and her residual earnings of $3,518 for In the result, the gross amount of my award to Ms. Ryan for past loss earnings is $252,732 ($462,978 - $48,904 [CPP] - $57,280 [Section B] - $ 100,544 [Manulife] - $3,518 [earnings since MVA] = $252,732)

13 Ryan v. Curlew, 2018 NLSC 72 [ 202 ] I find that an award of $575,000 for loss of future earning capacity is a fair assessment of the impact her injuries has had on Ms. Ryan s life. This will afford her the time and the means to embrace appropriate treatment for her various problems so that she can become an active and productive member of the workforce again. I reduce that amount by the $200,000 settlement that Ms. Ryan received from Manulife for longterm disability benefits; and I discount it by a further 10 percent for her failure to mitigate her losses, so then I award her the net amount under this head of damages of $337,500 ($375,000 x.90% = $337,500).

14 Ryan v. Curlew, 2018 NLSC 72 Head of Damage Amount Past Lost Wages $227,459 Past Lost Housekeeping $14,400 Past Costs of Care $12,561 Loss of Future Earning Capacity $337,500 Cost of Future Care $90,000 Loss of Future Housekeeping Capacity $31,500 General Damages $90,000 Total $803,420

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