Prashant Jadhav Plaintiff And: David Kielly Defendant, 2018 NLSC 97

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jadhav v. Kielly , 2018 NLSC 97 Date : May 1, 2018 Docket : 201401G5250 Between: Prashant Jadhav Plaintiff And: David Kielly Defendant Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 12-16 and March 20-23, 2018

Summary: The Plaintiff was struck by the Defendant’s vehicle on a dark and stormy night. The Plaintiff, dressed entirely in black, was walking on the right hand side of an unlit road in the direction of traffic. At issue were the Defendant’s liability for the motor vehicle accident and the assessment of damages. At the time of the accident the Plaintiff was a temporary foreign worker who, as a result of his injuries, was unable to return to his work. This impacted on his ability to mitigate his loss. Appearances: Phillip J. Buckingham & Appearing on behalf of the Plaintiff

Raymond G. Critch Peter D. Shea & Appearing on behalf of the Defendant Andrew M. Rowe Authorities Cited: CASES CONSIDERED: Lundrigan v. Matthews (1984), 31 Nfld & P.E.I.R. 466, 87 A.P.R. 466 (Nfld. S.C. (T.D.)); Penney v. Dean,2005 NLCA 48; Ryan v. Curlew, 2018 NLSC 72; Hannah v. Pollard, (SK KB), [1991] 91 Sask. R. 67, 24 A.C.W.S.(3d) 1329 (Q.B.), Tucker v. Taylor (1999), (NL CA), 173 Nfld. & P.E.I.R. 167, 530 A.P.R. 167 (Nfld. S.C. (C.A.)) STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c.

H-3 TEXTS CONSIDERED: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Second Edition, (Toronto: Butterworths,1999) REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] It was a dark and stormy night. It was October 27th, 2013. The Plaintiff was walking in a westerly direction on an unlitstretch of Brookfield Road in the City of St. John’s, Newfoundland and Labrador. He was dressed, from head to toe, in black clothing,and he was walking in the same direction as traffic – in contravention of s. 128(2) of the Highway Traffic Act, R.S.N.L. 1990, c.

H-3,which requires pedestrians to walk on the shoulder facing oncoming traffic. [2] Meanwhile, the Defendant had been catching up on some housework, had played with his dog and, around 10:40 p.m.embarked from his home, along Brookfield Road, to visit his girlfriend – who lived in the City of Mount Pearl, not too far distant fromthe Defendant’s residence. [3] The Plaintiff, a temporary foreign worker who had been recently employed by the Burger King situated near the corner ofTopsail Road and Cowan Avenue, had been given directions to an address in Mount Pearl.

He had taken a screen shot of the mapbrought up online by his co-worker, and was following the map on his phone. He testified that that there were two crossings that he hadto concern himself with – the first at Topsail Road to walk along Cowan Avenue, the second past Commonwealth Avenue in MountPearl to go on to his ultimate destination. The Plaintiff said that he traveled along the graveled portion of Brookfield Road and neverwent onto the paved portion. He has no memory of being hit by the Defendant’s car or where he was at the time of being hit.

Owing tohis injuries, he was in an induced coma for 6 days after the accident. [4] The Defendant testified at an examination for discovery and portions of his testimony were read into the record by both thePlaintiff’s and Defendant’s counsel. The Defendant said: I went to leave, it was pretty miserable, I guess, when I left the house. It was fog and rain and windy, just kind of a miserable black night… [5] As he was going up Brookfield Road, the Defendant said that the weather intensified. The rain or the wind seemed heavier.

Itturned bad enough that: I had to turn my wipers up to, to accommodate the weather being worse, the rain coming down harder … [6] The Defendant testified that he was driving his Jeep Grand Cherokee at 50-55 km/hr. The posted speed limit on BrookfieldRoad is 50 km/hr.

[ 7 ] Shortly after the Defendant turned up his windshield wipers to accommodate the rain coming down harder he saw: a shadow, a dark shape come from the shoulder of the road and out into the pathway of my vehicle from my side of the road, so I swerved to avoid, almost, but unfortunately wasn’t able to. [ 8 ] The front right corner of the Jeep hit the Plaintiff.

The Defendant, to his credit, stopped his vehicle, called 911 and lent assistance to the Plaintiff until ambulance personnel arrived and were able to transport him to hospital. [ 9 ] The Plaintiff suffered severe injuries to his cervical and lumbar spine, his sacrum and his tibia. The injuries required two surgeries to immobilize a portion of his cervical spine, and to repair the fracture of his tibia. The surgeries entailed the insertion of rods and screws to immobilize the affected areas. In addition, the Plaintiff suffered internal injuries, lacerations to his scalp and, possibly, a concussion.

Since the accident the Plaintiff suffered the recurrence of a pre-existing condition, namely a weeping fistula in the anal region. As well, the Plaintiff says that he has become incontinent and unable to discern when he needs to urinate and defecate.

As a result he says that he is extremely limited in what he can do and must fast before venturing outdoors to ensure that he does not have any “accidents” while away from home. [ 10 ] Both liability and quantum are in issue. [ 11 ] The Defendant did not testify and Plaintiff’s counsel have asked the Court to draw an adverse inference against the Defendant as a result.

Defendant’s counsel has countered that he twice advised the Plaintiff’s counsel that the Defendant could be made available to testify should Plaintiff’s counsel wish to call him as a witness and ask that he be declared adverse and subject him to cross-examination. Defendant’s counsel counters that Plaintiff’s counsel did not avail himself of that opportunity and, therefore, that no adverse inference ought to be drawn. Liability [ 12 ] The burden of proving causation, on a balance of probabilities, rests with the Plaintiff. It is not enough for the Plaintiff to prove that the Defendant was negligent.

He must also prove that the Defendant’s negligence caused the Plaintiff’s injuries. [ 13 ] Evidence of causation came from three sources – the Plaintiff, the evidence of the Defendant at examinations for discovery and the evidence of Cst. Andrew Wright of the Royal Newfoundland Constabulary. [ 14 ] The Plaintiff testified that he had left Burger King on Topsail Road after his shift ended. He was headed to an address on Crystal Place in Mount Pearl – a place where he had made arrangements to live. He was headed there to meet the people he was going to be living with.

He was walking because there was no bus service. He testified that he crossed Topsail Road, traversed down Cowan Avenue and turned right on Brookfield Road. He was to travel along Brookfield Road until he saw an overhead sign for Commonwealth Avenue. He would have to cross Commonwealth to, eventually, reach Crystal Place. He testified that it was very windy.

He also said that he was not familiar with the area, but he had a screen shot of a satellite image of the route that he was traversing to his intended destination. [ 15 ] The Plaintiff testified that he travelled on the right hand side of the road, on the graveled shoulder. He testified that he never left the graveled portion of the roadway. He said that he never walked on the pavement. He has no memory of being struck. [ 16 ] The Defendant gave evidence at an examination for discovery. In his words: … it was pretty miserable, I guess, when I left the house.

It was fog and rain and windy, just kind of a miserable black night … And as I said, it was a pretty miserable night so I had my lights on and my fog lights on and my wipers on as well and I was proceeding up Brookfield Road going, what direction would that be, west, I guess. As I was going up Brookfield Road the weather seemed to intensify, the rain or the wind seemed heavier.

I guess as I was half, you know, halfway up, or approximately, you know, halfway up the road the weather seemed to get worse, so at one point I had to turn my wipers up to, to accommodate the weather being worse, the rain coming down harder, and it was shortly after that that I saw a shadow, a

dark shape sort of come from the shoulder of the road and out into the pathway of my vehicle from my side of the road, so I swerved to avoid, almost, but unfortunately I wasn’t able to.

I hit the front corner, front fender of my Jeep as I was trying to avoid it … [ 17 ] The Defendant acknowledged that his speed was between 50-55 km/hr. [ 18 ] In a statement that the Defendant had given two days after the accident he had indicated that he: … glanced down to turn the wipers on a higher speed and I looked back up, the rain was heavy, I saw a black shape in my lane. [ 19 ] At the Examination for Discovery counsel for the Plaintiff specifically asked the Defendant about the inconsistency as follows: … The only difference there is you’re suggesting today that you saw it move from the shoulder to your lane, and here (referring to the statement) it just says “I saw it in my lane”.

Do you recall specifically which of those two more accurately reflects what happened? A. Well, yeah, it was, it was something that suddenly was in front of me. Q. Okay. A. So it wasn’t visible in front of me, and then I saw a shadowy movement and it was in front of me. Q. Okay, was it in your, was the shape in your lane at the time you saw it or was it on the shoulder? I’m just trying to be clear, that’s all. A.

Yeah, no, I reacted to it being in my pathway so when I saw it I swerved. [ 20 ] And, later, in reaction to a question from Plaintiff’s counsel about where in the lane the object was when he struck it, the Defendant replied: A. Well, it wasn’t in the middle of my lane, like I said, it just sort of appeared, so I guess you would say … again, right, that all happened so fast, I can’t give you an exact distance but it wouldn’t have been in the middle of my lane, it would have been more towards where the shoulder was. It would have been more towards the shoulder than towards the middle. … A.

Yes, yeah, he was on the pavement, not on the shoulder. 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. [ 22 ] Plaintiff’s counsel drew my attention to the following passage from The Law of Evidence in Canada, Sopinka, Lederman & Bryant, The Law of Evidence in Canada , Second Edition, (Toronto: Butterworths, 1999) at p. 297): 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. [ 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. [ 25 ] Even though I have decided not to draw an adverse inference that does not end the matter of liability. I must consider the evidence of the Plaintiff and the evidence I have available from the Defendant through the discovery process. I must, as well, take into account any additional evidence that may bear on the issue of liability and, in particular, the evidence of Cst.

Andrew Wright – who was called on behalf of the defence. [ 26 ] Cst. Wright joined the Royal Newfoundland Constabulary in September, 2011. At the time of the accident he had been a police officer for just over two years. He was attached to patrol services at the time. He testified that he had been given about a week’s training regarding accident investigation, and that he was not issued the equipment necessary to conduct accident investigations. He had a vague recollection that the weather was poor. It was night, raining heavily and there was a lot of water build up on the road.

The combination of the heavy rain and darkness led to decreased visibility. The place where the accident occurred was a straight roadway, a part of Brookfield Road. [ 27 ] Cst. Wright recalled that the Plaintiff was wearing a black hoodie with the hood up. He could not recall where the Plaintiff had come to rest – whether it was on the shoulder or on the pavement. In hindsight Cst. Wright agreed that it might have been a good idea to note or record where the Plaintiff was located.

It might, as well, have been a good idea to take a photograph of the location of the accident, the damage to the Defendant’s vehicle or to have made some attempt to determine the exact point of impact. Cst. Wright did not look for any debris – such as broken headlight or parking light fragments to determine the point of impact. Nor did he feel it appropriate to call headquarters and insist that an accident reconstructionist attend the scene. [ 28 ] Cst. Wright obtained a statement from the Defendant in which the Defendant admitted to driving between 50 – 55 km/hr. [ 29 ] Cst.

Wright gave some evidence that, frankly, I found quite astounding. He said that you could exceed the speed limit by 4 – 5 km/hour without adverse effect. He testified that even with the heavy rain, water build up and reduced visibility, you could drive the speed limit or a few kilometers per hour over and still be driving reasonably. [ 30 ] Luckily Cst. Wright was not espousing the law.

Section 110(1) of the Highway Traffic Act makes it clear that drivers are not allowed to drive at a speed which is greater than is reasonable and prudent under the conditions and having regard to actual and potential hazards existing on the highway or other place. The maximum speed limit is the fastest one is legally allowed to travel under the best of conditions. As conditions deteriorate, drivers are expected, and obliged by law, to reduce their speed to account for those adverse conditions. This statement is so axiomatic and, yet, Cst. Wright did not appear to grasp the concept. [ 31 ] Section 110(3)(

a) makes it an offence to drive at a rate that is 1 to 10 km/hour faster than the posted speed limit. Despite that, and the Defendant’s admission that he was speeding, Cst. Wright saw no reason to issue him with any traffic ticket. [ 32 ] Regrettably, Cst. Wright made up his mind about liability without the benefit of a thorough investigation. This finding is aided by the general occurrence report filed by Cst. B. Osmond, who was Cst. Wright’s superior.

In that report he outlined the following: Areas of Concern: - whether or not the pedestrian was walking on the gravel shoulder of the road or the pavement. - was the pedestrian visible to motorists driving at reasonable speed given the driving conditions . * placement of light sources lighting the roadway. *clothing worn or items being carried by pedestrian. * any reflective items. - road lines (center line and fog lines) clearly visible in area to assist driver in maintaining proper driving position. - any mechanical issues with the vehicle, did the front defog work, was the windshield clean inside, were the wipers good, headlights working (hot shock?)

[ 33 ] And although Cst. Wright referred the matter to Accident Investigation in the Royal Newfoundland Constabulary, there was no follow up, no accident investigation and the matters raised by Cst. Osmond were never answered. [ 34 ] I was urged by defence to accept the evidence of Cst. Wright in making my determination with respect to liability. In light of the poor investigation and his unfortunate predilection towards accepting the Defendant’s version of events without any further follow up, I am not inclined to do so. I do not, therefore, accept Cst.

Wright’s opinion that the Defendant was driving reasonably and prudently when the collision took place.

The Defendant ought, in my view, to have substantially reduced his speed in order to account for the fog, heavy rain, water build up on the road, wind and darkness of the night. [ 35 ] That does not, in itself, settle the issue of liability. [ 36 ] I must still decide whether the Defendant is to be held accountable for this collision and, if so, what degree of responsibility the Plaintiff bears for having suffered this misfortune. [ 37 ] The Plaintiff was clear that he was told he had to make two crossings to arrive at Crystal Place – one on Topsail Road to reach Cowan Avenue, the second on Commonwealth Avenue.

I found the Plaintiff to be a truthful, reliable witness. He gave his evidence without embellishing and in a matter of fact manner. He said that he was walking along the shoulder of Brookfield Road and never left the graveled portion of the roadway. He acknowledged that he could not remember the impact and, because he could not remember, could not say whether he was on the shoulder or on the pavement.

However, he was adamant that he never left the graveled shoulder and would only be crossing any roads at the two locations noted earlier. [ 38 ] He acknowledged that he was walking on the right hand side of the road in the same direction as traffic, and that he was wearing dark clothing – except for a cap that he said had yellow stickers on it. I accept, however, that at the time of the accident he was wearing his hood – as noted by the Defendant and Cst. Wright.

And this would make logical sense because of the amount of rainfall prevalent at the time. [ 39 ] On the other hand, I have the evidence of the Defendant that was provided in the examination for discovery in this matter. When one analyzes the Defendant’s evidence it is not clear whether the Plaintiff was on the shoulder or on the pavement.

Although the Defendant, at one point, says that the Plaintiff was on the paved portion of the road but closer to the shoulder, it is difficult to say from the Defendant’s discovery evidence what, exactly, he is attesting to. [ 40 ] We do know, for certain, that the rainfall increased substantially enough that the Defendant was forced to turn up the speed of his windshield wipers. We do know, for certain, that the roadway was covered with water.

We can surmise that it would have been difficult to see both the center line of the road and fog line. [ 41 ] The contradictions in the Defendant’s versions of what, exactly, took place militate against accepting the proposition that the Plaintiff was on the pavement when he was struck. I am also not unmindful of the Defendant’s evidence that he found the Plaintiff on the shoulder after he had been struck. [ 42 ] It is more likely that the Defendant struck the Plaintiff on the shoulder of the road than on the pavement based upon the evidence before me.

And I so find. [ 43 ] This case is distinguishable from Lundrigan v. Matthews (1984), 31 Nfld & P.E.I.R. 466, 87 A.P.R. 466 (Nfld. S.C. (T.D.)). In that case Mahoney, J. dismissed a pedestrian’s claim for injuries caused by a motor vehicle. In that case the learned trial judge found that the defendant did all that a prudent driver could do on the night in question. [ 44 ] For the purposes of the liability analysis, then, I find that that the Defendant owed a duty of care to others using the roadway. Pedestrians are to be found on all manner of roads in Newfoundland and Labrador.

Often they walk on the right hand side of the road in the same direction as vehicular traffic. It was incumbent on the Defendant, when driving in adverse weather and road conditions such as those experienced on the evening of October 27th, 2013 to substantially reduce his speed so that he could traverse the road safely and with due regard for others using the roadway, including pedestrians. His failure to do so constitutes a marked departure from the standard of care expected of a reasonable driver, a departure that makes him liable in negligence.

[ 45 ] The Plaintiff complains that after the accident he developed urinary and fecal incompetence. He says that he is unable to feel the urge to evacuate his bladder and bowel. As a result he is constrained as to what he can consume in terms of liquids and solids if he wishes to venture outside of his home. He complained of two instances when he experienced incontinence – once an incident of urinary incontinence while he was in Walmart and, in another instance – an incident of fecal incontinence when he was riding on a bus in St.

John’s. [ 46 ] Counsel urged on me the notion that the fecal and urinary incontinence from which the Plaintiff now suffers is life shattering. He said that the Plaintiff will never be able to have a cup of tea or a meal without wondering if he will soil himself. This has implications on both his home life and his ability to work. [ 47 ] There is no doubt that incontinence can have profound effects on one’s lifestyle. However, there are some problems with this aspect of the Plaintiff’s claim. [ 48 ] First, I do not believe that the Plaintiff has surmounted the hurdle of causation.

None of the medical doctors who testified on behalf of the Plaintiff, including a colorectal surgeon who performed the fistula surgery, testified concerning the incontinence issue, and there is no medical evidence that the incontinence was caused by the collision. Similarly, the issue was not discussed with the other health care professionals that the Plaintiff consulted. [ 49 ] Secondly, as was pointed out by counsel for the Defendant, the Plaintiff reported to the surgeon in India who successfully repaired his anal fistula that the problem with respect to incontinence had been ongoing for six months.

The surgery for the anal fistula was conducted in India around March, 2015. I cannot say, from the evidence, what caused the Plaintiff’s problems with incontinence. There is no medical evidence that the collision in 2013 was responsible for it since the Plaintiff did not report its onset until almost seventeen months after the collision occurred. [ 50 ] Thirdly, thousands of Canadians live with incontinence and deal with the problem in a variety of ways: by purchasing special underwear, by self-administering enemas.

The Plaintiff cannot afford, with his limited means, to buy these necessities or has not considered them. As a result, his lifestyle is much more severely restricted than would be the case otherwise. The Plaintiff has been unable, largely as a result of impecuniosity, to mitigate the effects of the incontinence that he has suffered. Contributory Negligence [ 51 ] The Plaintiff bears a measure of responsibility for the accident and I find that he was contributorily negligent. He was walking on the wrong side of the road in contravention of section 128(2) of The Highway Traffic Act which states as follows:

(2) Where there is no sidewalk, a pedestrian walking along or upon a roadway or the shoulder of a highway shall, where practicable walk only on the left side of the roadway or the shoulder of the highway facing traffic approaching from the opposite direction and no more than 2 persons shall walk abreast on the roadway. [ 52 ] In addition, the Plaintiff was dressed in dark clothing from head to toe, making it extremely difficult for anyone to know that he was there.

Had the Plaintiff worn light clothing or, for that matter, some reflective tape on his clothing he could have avoided injury to himself. [ 53 ] I will provide an analysis of the parties’ respective degrees of fault later in this decision. Damages [ 54 ] The Plaintiff is an Indian national. He is now 40 years of age. Prior to moving to St. John’s to work as a temporary foreign worker, the Plaintiff was engaged in a course of studies in Toronto which he did not complete.

By his own admission, he is not academically inclined and has only completed his Grade XII matriculation and an online Microsoft course – which he took some years ago. [ 55 ] The Plaintiff had depleted his savings while studying in Toronto and, with the encouragement of a friend in St. John’s, he obtained a temporary foreign worker’s permit that allowed him to work at a Burger King franchise in St. John’s, NL. The permit was valid for one year and could be renewed.

It was job specific and employer specific – meaning that he could only work in the occupation for which it was issued (short order cook) and only for the employer listed in the permit (Burger King). [ 56 ] The Plaintiff’s intention at the time he obtained the permit was to work in St. John’s for 6 to 12 months and, then, return to

India – where he had a wife and young daughter. Since the accident his wife has separated from him. [ 57 ] The Plaintiff only worked at Burger King for a couple of months before the accident but, in that time, he impressed his supervisors with his attention to his job, his ability to multi-task and his diligence. He worked every hour in every shift and was regarded as a keen, involved worker.

Although he had no previous experience in the fast food industry, he quickly became a valued member of their team. [ 58 ] Similarly, in his life in India and Dubai prior to coming to Toronto, the Plaintiff applied himself to his various occupations and, through tenacity and determination, bettered his situation immensely. [ 59 ] The accident on October 27th, 2013 resulted in a fracture to the Plaintiff’s C-6 vertebra that required neurosurgery and the fusion of the C-5 to C-7 vertebrae with rods and screws.

He suffered non-displaced fractures of the L-2, L-3 and L-4 lumbar vertebrae, a fracture of the sacrum, bruising of the left adrenal gland and a kidney laceration. He suffered a concussion, lacerations on his forehead and a fractured tibia and fibula.

The tibia was repaired by an orthopedic surgeon, who inserted a rod and screws that held the comminuted fracture in place. [ 60 ] The Plaintiff was put into a medically induced coma for 6 days following the accident. [ 61 ] While both the neurosurgeon and the orthopedic surgeon testified that the procedures they conducted were successful, the Plaintiff reports that he has constant pain and swelling in his leg and ankle that restricts his ability to stand for long periods of time. [ 62 ] Prior to the accident the Plaintiff had suffered from a fistula of the anal canal. Prior to the accident it was asymptomatic.

After the accident this pre-existing condition became aggravated once again. Two surgeries were attempted in Canada to repair the problem, but the problem persisted. In 2015 the Plaintiff underwent a surgery in India which was successful. The fistula no longer presents a problem. [ 63 ] The Plaintiff attempted to return to work after the accident. However, it became apparent that he could not do his job because he became distracted by pain as a result of standing and craning his neck to view the monitor. He was unable to perform anywhere close to the level that he was at before the accident.

And even though his employer attempted to accommodate his condition by providing a helper and frequent breaks, it became apparent to all concerned that he would be unable to continue. His temporary foreign worker’s permit expired in August, 2014 and, since that time, he has been residing in Canada on renewable visitor’s visas – presumably obtained in order to enable him to prosecute this action. After the statutory insurance benefits ran out the Plaintiff obtained loans of money from a sister in the United States to enable him to survive.

He does not have sufficient funds from this source to obtain regular medical treatment – which he must now pay for out of pocket – or to eke out anything more than a marginal existence. He is almost completely impecunious – and lives off the generosity of his family members and friends. [ 64 ] After the accident the Plaintiff was enrolled in physiotherapy sessions, he regularly visited a massage therapist and, as well, a kinesiologist.

Each of these health care professionals expressed their admiration for the Plaintiff’s work ethic – he punctually and regularly completed all assignments that were given to him, by way of exercises, to enable him to return to some degree of normalcy. [ 65 ] The Plaintiff is only able to sit for about half an hour before the pain in his neck and back begins to radiate. Similarly, he cannot stand for extended periods of time because his leg begins to swell and causes him pain and discomfort. He can vacuum his house and cook his own meals, but is unable to do any heavy work.

He is unable to clean his bathroom because he is afraid that he will lose his balance and injure himself. [ 66 ] The Plaintiff requires orthopedic shoes and orthotic inserts to walk properly. Despite that he is completely ambulatory and is able to walk unassisted, and does so on a regular, daily basis. [ 67 ] There is no doubt that he cannot return to the job that he was employed in just prior to the accident. Plaintiff’s counsel candidly admitted that the Plaintiff cannot now work in Canada because he has lost his temporary foreign worker’s certificate.

The Plaintiff wishes to upgrade his skills by attending at the College of the North Atlantic. However, as Plaintiff’s counsel put it, “practically it’s a pipe dream”. He does not have the academic background or the ability to interpret the idiom and nuances of the language sufficient to allow him to succeed in an academic setting.

[ 68 ] The Plaintiff, before the accident, could have availed of the Provincial Nominee Program – that assists temporary foreign workers to become landed immigrants. Now, however, he no longer qualifies for that program. His opportunity of becoming a permanent resident is lost. Possibly irretrievably. [ 69 ] While the Plaintiff wants to stay in Canada, he cannot work at Burger King, or any similar type of job, and does not possess the skills that will enable him to apply to become, and be accepted as, a permanent resident.

He is a citizen of India and, like it or not, he will probably have to return there. [ 70 ] Before the accident his stated aim and objective was to earn some money and return to India. It is only since the accident that the Plaintiff has begun to harbor some notions about remaining in Canada. Perhaps, in part, because he has separated from his wife and India no longer has the same attraction for him. Practically speaking, however, his ability to remain in this jurisdiction is virtually nil.

He has neither the academic qualifications nor the job skills that would allow him to successfully obtain permanent resident status in this country. [ 71 ] Plaintiff’s counsel strongly urged that any damage award I make should be based upon the assumption that the Plaintiff will remain in Canada. Indeed, all of the assumptions utilized by the actuary in calculating the amounts required to fund potential awards under various heads of damage are based upon the notion that the Plaintiff will remain in Canada. The conundrum for me is that the Plaintiff will undoubtedly not remain in Canada.

This impacts to a large degree upon the calculations of the actuary. In fact so much so that I am not at all certain that the report presented is useful to me. [ 72 ] Defendant’s counsel took the position, first of all, that the Plaintiff is not unemployable. While he may have some challenges, there is no reason that he cannot obtain sedentary employment and earn a decent income from it. Counsel acknowledged that some retraining might be necessary in order for him to be able to obtain alternative employment.

One thing that came through clearly in the course of the testimony in this trial is that the Plaintiff is tenacious and has the desire to succeed. He will not be content sitting at home doing nothing.

With some re-training assistance he will be able to find suitable employment for himself – if not here then certainly in India. [ 73 ] The parties’ positions with respect to damages can be summarized as follows: Plaintiff Defendant General damages for pain and suffering $225,000.00 $150,000.00 Earnings to the end of 2017 $78,494.00 (assumes $.25/hr increases annually) $60,000.00 Future loss of income with some residual income $494,600.00 Assuming retirement at age 70. 25c/year raise.

NIL 2 years re-training NIL $50,000.00 Housekeeping – past and future $28,1323.20 for past housekeeping capacity and $195,161.00 for loss of future housekeeping capacity $40,000.00 Future care costs $180,255.77 $25,000.00 Special Damages $989.24 $2,489.24 Total $1,003,744.01 Plus pre-judgment interest on appropriate heads of loss $327,489.24 Plus pre-judgment interest on appropriate heads of loss [ 74 ] The numbers that I have used for the Plaintiff’s column are not the actual numbers suggested by counsel for the Plaintiff. Counsel, through an actuary, gave various calculations under different scenarios.

For example, whether the Plaintiff was expected to work to age 65 or age 70, or whether he would have received salary increases of from $0.25/year to $0.50 per annum. I have taken the lower ranges simply for the sake of comparison in this table. What I now propose to do is deal with each

section in turn and provide my reasons for any award that I intend to make. In the last

section of my analysis, I will deal with the issue of contributory negligence and

how that impacts on the overall assessment of damages. General Damages for Pain and Suffering [ 75 ] There is no question that the Plaintiff has endured pain and suffering as a result of the motor vehicle accident, and that the pain may continue for some time into the future – especially if the Plaintiff stands for any length of time or holds his neck in awkward positions – as he was expected to do in the execution of the duties in his former employment with Burger King.

The pain is manageable with medication if the Plaintiff refrains from activities that aggravate his condition. [ 76 ] I have found that the Plaintiff has not been able to show a causal connection between the accident and the incontinence issues that have plagued him. I cannot, therefore, award him any damages on account of them . [ 77 ] The Defendant has suggested the sum of $150,000.00 for general damages for pain and suffering. The Plaintiff has suggested $225,000.00 but on the assumption that a portion of that award would have to be on account of the incontinence issue.

I find that $150,000.00 is a reasonable amount to compensate the Plaintiff for the pain and suffering he has endured, and will endure, on account of the injuries sustained as a result of the motor vehicle accident. Earnings to the end of 2017 [ 78 ] The Plaintiff has calculated $78,494.00 as the amount that would compensate him for loss of income to the end of 2017. This is based on the assumption that he would have received annual increases of $0.25 per annum. Plaintiff’s counsel indicated in his pre-trial brief that from this amount ought to be deducted $11,677.62 that was received in income support for

Section B benefits and $10,834.00 that was earned by him in 2014 and 2015. [ 79 ] The Defence has suggested $60,000.00 be paid for lost earnings to the end of 2017 after taking into account the amounts he has been paid in

Section B benefits and by way of actual income that he earned.

The Defence has suggested this amount despite the fact that it takes the position that the Plaintiff was cleared, medically, to go back to work after 2 ½ months following the accident and, in the Defendant’s submission, the Plaintiff did not mitigate his losses by looking for alternative work. [ 80 ] The Defence argued that although the Temporary Foreign Worker Program places a limitation, in the work permit, in terms of the type of work that the worker may do and the employer for whom he must do that work, it does not stop a worker from seeking employment with an alternative employer under the program to perform a different type of work. [ 81 ] The Temporary Foreign Worker Program allows Canadian employers to hire foreign nationals to fill temporary labour and skill shortages when qualified Canadian citizens or permanent residents are not available.

Unfortunately for the Plaintiff, he is not skilled or qualified to fill any labour or skills shortages that do not require the type of manual, physical labour that he was hired to do by Burger King. [ 82 ] While the Plaintiff may not have actively looked for alternative employment, it is doubtful that he could have obtained any given that he has no academic qualifications beyond high school matriculation.

His previous work experience as a data center manager would not have assisted him in obtaining temporary work here because that experience is dated and the Plaintiff testified that he would have to undergo re-training in order to obtain that type of work either here or in India. [ 83 ] There was no evidence led as to whether or not that previous information technology work experience would qualify him for work under the Temporary Foreign Worker Program. [ 84 ] I am prepared, however, to award the sum of $60,000.00 on account of earnings lost until the end of 2017 – which amount takes into consideration the amounts that he has already earned from employment or received on account of

Section B benefits for loss of income. For the purposes of this head of damage, I am not applying any deduction on account of failure to mitigate because, in my opinion, short of making applications with no hope of success, there is nothing that the Plaintiff could have done to obtain alternative employment. Future loss of income [ 85 ] The Plaintiff claims $494,600.00 on account of future loss of income. His counsel indicated in his trial brief that while the

Plaintiff retains some residual capacity, his position is that he is unable to work. The main reason cited for that inability is that thePlaintiff would have to fast for several hours a day on account of his problem with incontinence. [86] I am not convinced, on a balance of probabilities, that the Plaintiff’s incontinence was caused by the motor vehicle accident.He made an admission against interest to his attending physician in India, recorded in his medical chart, that he had been undergoing anincontinence issue with occasional soiling for 6 months prior to March, 2015.

And while the Plaintiff said in his evidence in chief that hediscussed the incontinence problems with Dr. Pollett, his assistant and Dr. Mpiana there is no confirmation from the medicalprofessionals that he did so. [87] Dr. Pollett, his colorectal surgeon, was specifically asked in cross-examination whether the Plaintiff had consulted him withrespect to this issue and Dr. Pollett responded in the negative. Similarly, Dr.

Mpiana, his family doctor, gave detailed evidence abouteach of the Plaintiff’s visits but did not mention that any issue with respect to incontinence was ever brought up or discussed with him. [88] The Plaintiff’s testimony is counter to the advice he gave to his surgeon in India, when he did discuss the incontinence issue.

Inlight of the Plaintiff’s contradictory evidence on this issue, I am not satisfied that he has discharged the burden to prove, on a balance ofprobabilities, that the accident is the proximate cause of the injury. [89] This, of course, has a debilitating effect on the actuarial evidence that was led concerning future loss of income since one of thecornerstone assumptions, that being that the Plaintiff is completely unable to work as a result of the injuries he sustained on October27th, 2013, is not sustainable. [90] In Penney v.

Dean, 2005 NLCA 48 our Court of Appeal said, at paragraph 20: … [U]nless there is something in the circumstances that justifies shifting the burden of proof to a defendant, the burden of provingcausation, on the balance of probabilities, rests with the plaintiff. In the words of Major J., [in Athey v. Leonati, (SCC),[1996] 3 S.C.R. 458, S.C.J.

No. 102 (SCC)] ‘the plaintiff must prove that the defendant's tortious conduct caused or contributed to theplaintiff's injury’. [91] Even if I am wrong in this finding, I believe that the Plaintiff has not been able to mitigate his incontinence disability onaccount of his impecuniosity. Since he has no income, and is dependent upon the largesse of family members and friends, he has nopresent ability it would seem to purchase any products, such as adult diapers, that would assist him in managing the incontinence. Manypeople are similarly affected but lead useful, productive lives.

They do not become hermits and withdraw from the working world.Impecuniosity does not provide an excuse for failure to mitigate. [92] Furthermore, the Plaintiff testified that, with respect to fecal incontinence, he can prevent soiling himself if he has a couple ofminutes to make his way to toilet facilities when he surmises that a bowel movement is about to occur.

The use of adult diapers and anaccommodating employer would go a long way towards mitigating the effects of the problem that he is experiencing. [93] On the stand the Plaintiff provided only two instances when, as a result of the situation he found himself in – once at Walmart,another time on a bus, that he had problems with urinary and fecal incompetence. [94] The actuarial report is of little use because it assumes an extreme position – that the Plaintiff cannot work at any occupation forthe rest of his life – and that he cannot do so because of incontinence in large part. [95] The Plaintiff struck me as someone who was highly motivated to succeed.

Despite his lackluster performance in high school,he obtained employment and bettered himself at every opportunity until he had become a manager of a data center in India and in Dubai.There is no reason to believe that he has lost any of that desire or determination. He attacked his rehabilitation with unusual dedicationand fervour according to all of his care providers. There is every reason to believe that, given the opportunity, he would further himselfin the same manner if it were possible for him to do so.

The Plaintiff is still a relatively young man and has many working years ahead ofhim. [96] The Plaintiff is capable of working in a sedentary occupation that does not require him to be on his feet all day or to hold hishead at uncomfortable angles. There are many jobs that, owing to the marvel of the Internet, people can now do from home. These types

of opportunities are possible for the Plaintiff – whether he does them in India or elsewhere. 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. 2 Years Retraining [ 98 ] Counsel for the Defendant submitted that the Plaintiff should be given an allowance of $50,000.00 for two years’ training at, for example, the College of the North Atlantic. This amount would enable him to pay tuition and have enough left over to pay his cost of living while attending the College to upgrade his skills.

If the Plaintiff were to upgrade his skills in an area, like computer technology, in which he has some aptitude then he might be able to enhance his ability to obtain permanent residency status in Canada or use the newly acquired skills in India should he ultimately be forced to return. [ 99 ] The offer was made by counsel, I believe, on the basis that retraining in an appropriate field would eliminate the necessity for paying any compensation on account of future loss of income.

Given the Plaintiff’s demonstrated work ethic and his aptitude in the area of networks and computers, I agree that an award such as this would be an appropriate compensation aimed at putting him in the place he would have been but for the effects of the accident. [ 100 ] If, as Plaintiff’s counsel suggested, language would be a problem for the Plaintiff in obtaining this training in Canada, there is nothing stopping him from obtaining the training in an institute in India where, presumably, language would not be a problem for him.

Indian certification in the computer field is certainly accepted in Canada if the Plaintiff intends to make an application in the future for permanent residency. [ 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 instead of the amount suggested by Counsel.

Housekeeping [ 102 ] The Plaintiff claims $28,123.20 for past housekeeping capacity and $195,161.00 for loss of future housekeeping capacity. [ 103 ] The Plaintiff testified that during his convalescence he, initially, was unable to do any housework. However, after having progressed from walking with a walker, to a cane to, now, walking completely unaided, he has been able to undertake many of the tasks of daily living that were, for some time, beyond his abilities. He is able to cook his own meals. He is able to vacuum and dust his apartment. He has some difficulty bending low or reaching high.

He has some difficulty with heavy weights. He still needs help shopping for groceries. [ 104 ] The Defendant has stated that a global sum of $40,000.00 would adequately cover his past and future housekeeping needs. [ 105 ] I asked counsel for the Plaintiff, during the trial, how I should calculate damages if it is apparent, based upon the evidence, that his client will likely not be able to remain in Canada as a permanent resident.

Counsel replied that damages should be assessed on the basis that he will remain in Canada because this is where he wishes to stay. [ 106 ] The Court has a responsibility, though, to assess damages based upon a realistic appraisal of the Plaintiff’s prospects.

If there is every indication that he will return to his country of origin because of a lack of skill enabling him to stay, or a lack of ability to work in a temporary foreign worker type of occupation that is occasioned by the injuries he has suffered, then the Court needs, of necessity, to apply a contingency to the award. [ 107 ] We were told by the plaintiff that not that many years ago he worked at his first job in India, full time, 6 days per week for $15.00 per month.

I am entitled to take judicial notice of the fact that the cost and standard of living in developing countries such as India is much, much lower than it is in Canada. [ 108 ] I am, therefore, prepared to allow the claim for $28,123.20 for past housekeeping capacity because those losses occurred in

Canada. And I would apply a contingency, on account of his likely change of residence and return to India, to the claim for futurehousekeeping costs of 80% and award $39,000.00 for future housekeeping costs, for a total of $67,123.20 in relation to these heads ofdamage. This award takes into account the possibility that the plaintiff will remain in Canada for two years to upgrade his education. Future Care Costs [109] I accept that the cost of future care for the Plaintiff, if he were to remain in Canada, might well approach the $180,255.77claimed by his counsel on his behalf.

However, I feel constrained to apply the same contingency discount on account of this head ofdamage as I have done for housekeeping costs. Accordingly, an 80% discount for contingency would result in an award of $36,051.00. [110] In his submissions, counsel for the Defendant suggested that $25,000.00 would be adequate for the costs of future care since, inhis view, one might anticipate that the need for massage, medication and physician visits would decrease over time.

Counsel suggestedthat the Plaintiff had made a complete recovery as far as the medical specialists, such as the neurosurgeon and orthopedic surgeon wereconcerned, and by his own admission the anal fistula problem that was exacerbated by the collision had been cured in India. Special Damages [111] Special damages of $2,489.24 are awarded, which is $1,500.00 more than was claimed by the Plaintiff. The additional amount isawarded because the Defendant’s counsel agreed that the $1,500.00 paid by the Plaintiff for the anal fistula surgery in India should bereimbursed inasmuch as it was effective in curing his problem.

The Defendant’s counsel rightly indicated that no proof of payment ofthis cost was necessary. Management Fee [112] The Plaintiff’s settlement will be considerably less than the amount that the actuarial evidence postulated he ought to receive.The amount that I intend to award the Plaintiff will be more personally manageable for him, and it is unlikely that he will have to live offthat settlement for the rest of his life. As was done by Handrigan, J. in Ryan v. Curlew, 2018 NLSC 72, I decline any award on accountof this head of damage.

Contributory Negligence [113] $375,663.54 is the global amount that I have calculated the Plaintiff is entitled to before adjusting for contributory negligence.There is no dispute between the parties as to the existence of contributory negligence on the Plaintiff’s part – he was walking on thewrong side of the road during inclement weather. He was dressed almost entirely in black clothing, making it very difficult for anyone tobe aware of his whereabouts. [114] Counsel for the Defendant suggested that the Defendant should be no more than 10% at fault.

Counsel for the Plaintiffsuggested that the Plaintiff should be no more than 10% at fault. [115] I agree with counsel for the Plaintiff. A finding that the Plaintiff was 10% at fault due to his traversing on the wrong side of theroad while wearing dark clothing is in keeping with reductions made in the jurisprudence. See: • Hannah v. Pollard, (SK KB), [1991] 91 Sask. R. 67, 24 A.C.W.S. (3d) 1329 (Q.B.) – where the plaintiff wasfound to be contributorily negligent and assessed 25% liability but which is distinguishable from the present case because Mr. Hannahwas intoxicated at the time of the accident; • Tucker v.

Taylor (1999), (NL CA), 173 Nfld. & P.E.I.R. 167, 530 A.P.R. 167 (Nfld. S.C. (C.A.)) – Mr. Tuckerwas found 20% contributorily negligent but, unlike the present case, was standing in the middle of the defendant’s lane of traffic in dark,misty conditions at the time of the collision. [116] The total award of damages should, therefore, be $338,097.19.

Summary of Awards [117] In

summary, then, the awards are as follows: Head of Damage AmountGeneral damages for pain and suffering $150,000.00Earnings to the end of 2017 $60,000.00Future loss of income No awardRetraining allowance $60,000.00Housekeeping $67,123.30Future care costs $36,051.00 Special damages $2,489.24

Management fee No award Reduction for contributory negligence at 10% $37,566.35 Adjusted award $338,097.19 Costs [ 118 ] Counsel may make submissions to me regarding costs after having had an opportunity to review this decision and if they are unable to arrive at an agreement in relation to same. _____________________________ Vikas Khaladkar Justice