2011 NBCA 95, 2011 NBCA 95

COURT OF APPEAL OF NEW BRUNSWICK 106-10-CA WELDON FURLOTTE APPELLANT WELDON FURLOTTE APPELANT - and - - et - MARIO ELWARD RESPONDENT MARIO ELWARD INTIMÉ Furlotte v. Elward, 2011 NBCA 95 Furlotte c.

Elward, 2011 NBCA 95 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: July 26, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 26 juillet 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 247 Décision frappée d’appel : 2010 NBBR 247 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 14, 2011 Appel entendu : Le 14 juin 2011 Judgment rendered: October 20, 2011 Jugement rendu : Le 20 octobre 2011 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge en chef Drapeau L’honorable juge Quigg

Counsel at hearing: Weldon Furlotte Appeared in person For the respondent: Charles A. LeBlond, Q.C. Avocats à l’audience : Weldon Furlotte a comparu en personne Pour l’intimé Charles A. LeBlond, c.r. THE COURT The appeal is dismissed. The cross-appeal is allowed with costs of $3,000. LA COUR Rejette l’appel, accueille l’appel reconventionnel et accorde des dépens de 3 000 $. The judgment of the Court was delivered by LARLEE J.A. [ 1 ] On July 9, 1997, the parties were involved in a motor vehicle accident. It was a minor one. The air bags did not deploy. The police were not called.

Damage to both vehicles was minimal. The parties exchanged insurance and other pertinent information and drove away. The appellant, then a practicing lawyer, did not go to the hospital. He had no pain immediately after the accident; it developed a day or two following the accident. Nonetheless, the appellant, now retired from the legal profession, claimed at trial and on appeal he should be awarded damages in excess of $4,000,000.

While the respondent admitted liability, he has contested throughout the extent of the appellant’s accident-related injuries and losses. [ 2 ] In his decision, reported at 2010 NBQB 247, 362 N.B.R. (2d) 365 , the trial judge, basing his findings on the evidence of various medical experts, granted judgment against the respondent in the amount of $104,500. The appellant now seeks a new trial to increase the award of non-pecuniary general damages and to provide for additional awards under six other heads of damage, which the trial judge refused to allow.

The respondent cross-appeals the trial judge’s award for loss of valuable services. I. The Position of the Parties [ 3 ] The appellant has detailed his claim as follows:

(1) Special damages: $22,685.77, plus interest at 3% per annum for a total of $31,306.36, as well as $4,131.12 for the Blue Cross subrogation claim;

(2) Future cost of care: $301,810.00;

(3) Past loss of valuable services: (Exhibit Book 2 Tab 5.1 $30,265.00 x 12.61 years x 24.21% interest) $474,037.04;

(4) Future loss of valuable services $194,695.00;

(5) Past loss of income to the date of trial: $1,373,831.00;

(6) Future loss of income to age 75: $248,499 x 6.433 – multiplier $1,598,594.00; and

(7) Non-pecuniary damages: the trial judge awarded $30,000.00 in non-pecuniary damages for the whiplash injury suffered by the appellant.

The appellant requests $240,000.00 plus 7% interest from the date the action was filed, reflecting the amount he sought at trial. [ 4 ] The respondent’s position is set out in the Statement of Defence: As to the whole of the Statement of Claim, the Defendant says that the complaints of pain, if any, are the result of a long pre-existing history of pain involving the affected areas and the Defendant says that he has no liability to indemnify the Plaintiff in damages with respect to any of the said injuries and/or complaints of pain.

The Defendant further denies the Plaintiff has sustained any personal injuries as a result of this accident and says that any injuries alleged to have been sustained in this accident were pre-existing to the date of the accident […] The Defendant says further that the Plaintiff’s pre-existing condition arose from either physical injuries sustained prior to the accident or mental health problems pre-existing the accident or both. The Defendant denies the Plaintiff is entitled to the remedies claimed […] or to any other relief and puts the Plaintiff to the proof thereof.

Specifically, the Defendant pleads sub-sections 265.3(1), 265.4(1), 265.5(1) of the Insurance Act and says further that the Plaintiff has failed to mitigate his damages, if any, by not following appropriate medical advice and treatment. Further, the Defendant says that the Plaintiff’s damages, if any, are to be fully offset by any collateral benefits received by the Plaintiff. II. Grounds of Appeal and Cross-Appeal [ 5 ] Although the appellant relies on ten grounds of appeal, five of them relate to the admissibility of medical evidence.

The appellant alleges the trial judge erred in relying upon and considering the evidence of Dr. Michael G. Forsythe, Dr. Robert A. Forbes and Dr. John J. Milczarek, which the appellant says was neither credible nor reliable.

The other grounds of appeal allege the trial judge : • erred in law in considering that, because the vehicle the appellant was driving had minimal damage ($2,000.00) and the airbags did not deploy, the appellant could not have suffered the injuries as submitted by witnesses called by the appellant, especially since there was no accident reconstruction evidence or biomechanics evidence given by experts to support such a finding of fact. • made palpable and overriding errors in the assessment of the evidence by not addressing the pain disability the appellant suffers as a result of the right sacroiliac joint injury sustained in the accident. • erred in law in making a premature decision by denying the appellant the opportunity to provide all admissible evidence and legal arguments supporting his claim for loss of investments in the middle of the trial. • made a palpable and overriding error in the assessment of the evidence restricting the appellant’s loss of income capacity to the age of 65 on a part-time basis of 7 months per year.

[6] In the cross-appeal, the respondent seeks to strike or reduce the trial judge’s award for loss of valuableservices. III. Standard of Review [7] The appellant’s grounds of appeal relate to findings of fact or inferences drawn from the facts. Therefore, theapplicable standard of review is “palpable and overriding error”. In Wallace v.

Thibodeau, 2008 NBCA 78, 337 N.B.R. (2d) 342,Drapeau C.J.N.B. explains why an assessment of damages must stand unless it is palpably incorrect or wholly erroneous: Absent a significant error of law (e.g. a failure to abide by legislative dictates), a significant principle-related mistake (e.g. a failure tofollow settled common law rules) or a palpable and overriding error in the assessment of the evidence, the trial judge's assessment ofdamages must stand unless it is "palpably incorrect" or "wholly erroneous" (see Naylor Group Inc. v. Ellis-Don Construction Ltd.,[2001] 2 S.C.R. 943, [2001] S.C.J.

No. 56 (QL), 2001 SCC 58, para. 80, Woelk v. Halvorson, (SCC), [1980] 2 S.C.R.430, at p. 435, [1980] S.C.J. No. 82 (QL) and Gerd'son v. Howe et al. (2006), 308 N.B.R. (2d) 237, [2006] N.B.J. No. 562 (QL), 2006NBCA 117, paras. 5 and 7). However, where one or more of the flaws mentioned above are established, it is incumbent upon the appealcourt to perform or direct the assessment of damages called for by the evidence, the law and the governing principles (see Belyea v.Hammond (2000), 231 N.B.R. (2d) 305, [2000] N.B.J. No. 436 (QL), 2000 NBCA 41, para. 7, Comeau v.

Saint John Regional Hospitalet al. (2001), 244 N.B.R. (2d) 201, [2001] N.B.J. No. 450 (QL), 2001 NBCA 113, para. 85 (per Deschênes, J.A. for the Court) andVincent v. Abu-Bakare (2003), 259 N.B.R. (2d) 66, [2003] N.B.J. No. 198 (QL), 2003 NBCA 42, para. 28). [para. 23] [8] In Sinclair v.

Dines, 2005 NBCA 15, 279 N.B.R. (2d) 227, Drapeau C.J.N.B. describes the non-interventionistrole of this Court: The standard of review on an appeal from an assessment of damages dictates non-intervention unless it is shown that there is no evidenceto support the conclusion reached at trial, the trial judge misapprehended the pertinent evidence, a significant error in principle hastainted the trial judge's analysis, or the quantum itself is "wholly erroneous" or "palpably incorrect": Naylor Group Inc. v.

Ellis-DonConstruction Ltd., 2001 SCC 58 , [2001] 2 S.C.R. 943, at para. 80 (per Binnie, J. for the Court) and Comeau v. Saint JohnRegional Hospital et al. (2001), 2001 NBCA 113 , 244 N.B.R. (2d) 201 (C.A.), at para. 102, (per Deschênes, J.A. for theCourt). [para. 28] [9] If findings of fact or inferences drawn from fact are clearly wrong, they may be set aside on appeal if they canbe shown to have affected the result. The test is also met if the findings are unreasonable or unsupported by the evidence (see H.L. v.Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401).

One thing is certain: if this Court is invited to retry the case andsubstitute its opinion for the one of the trial judge, it must decline (see T.M.S. v. New Brunswick (Department of Social Development),2009 NBCA 50, 347 N.B.R. (2d) 285 at para. 2). IV.

The Appeal [10] The trial judge concluded, after a consideration of the voluminous written medical evidence put before him byconsent of the parties and the oral testimony of these experts, the appellant had a pre-existing symptomatic degenerative disc disease ofhis lumbar spine, a condition which was unrelated to his accident in 1997 and thus made him fit into the “crumbling skull” category. Theappellant also had an asymptomatic degenerative disease of the cervical spine.

The judge found the accident increased the appellant’spain for two years after the accident, and awarded damages accordingly. [11] The trial judge made the following award of damages: $30,000 for non-pecuniary general damages and$74,500 for loss of valuable services plus legal interest on the $74,500 and costs of $7,375 plus provable disbursements. The underlyingcore finding is the following: as a result of the accident, the appellant suffered an aggravation of the pain symptoms he had experiencedfor 10 years, and this aggravation ceased 2 years post-accident.

The nub of the decision in first instance is contained in the followingparagraphs of the trial judge’s reasons for judgment: […] on July 9, 1997 Mr. Furlotte was injured in a minor accident. As a result of the accident, Mr. Furlotte suffered a whiplash injurywhich I would categorize as a minor whiplash of a category I type. Both Drs. Forsythe and Milczarek categorized Mr. Furlotte's whiplashas category I. Dr. Levesque categorized it as a category 2 but was of the view that normally a category 2 whiplash would resolve in six

months to two years. Considering all of the medical evidence, I believe Mr. Furlotte's whiplash injury is closer to a category 1 than a category 2. […] prior to the July 9, 1997 accident, Mr. Furlotte suffered from a pre-existing condition -- degenerative disc disease. The whiplash injury was "superimposed on a pre-existing symptomatic degenerative disc disease of his lumbar spine". On a balance of probabilities, I believe the pain from the pre-existing condition was exacerbated by the July 9, 1997 accident.

I take from the medical evidence that this pre-existing condition had, before the accident, developed into symptomatic spinal degenerative disease. This is confirmed in Drs. Mockler, Milczarek and Forsythe's reports. While it is difficult to determine from the medical evidence, I am satisfied the accident of July 9, 1997 increased Mr. Furlotte's pain, I do not believe the evidence establishes that the accident caused any changes to his spine or his present medical condition. Dr.

Mockler states that he would; "at the very most ... attribute no more than 50% of his current problems to the motor vehicle accident ...". Dr. Forbes was of the opinion that 30%-50% of Mr. Furlotte's present problems being attributed to the accident would be generous. Dr. Forsythe was of the opinion that the accident added 30% more pain which had subsided by July 2003. Dr. Milczarek was of the view that the accident may have exacerbated the pain for approximately 2 years but the problems of not being able to work, sit, stand or walk for any reasonable amount of time is typical of spinal degenerative disease.

After considering all of this evidence, I believe that the accident caused Mr. Furlotte's additional pain for a period of two years and that is all it caused. Therefore, to summarize, I accept the medical opinion of Drs. Forbes, Forsythe and Milczarek and accept that Mr. Furlotte's pre-existing pain condition was exacerbated by the accident. I accept Dr. Mockler's opinion that the accident aggravated Mr. Furlotte's pre-existing condition by elevating his pain for a period of time. I accept Dr. Mockler's opinion that it was not necessary for Mr.

Furlotte to give up his legal career and he could have been taught coping skills which would have permitted him to continue to work. Finally, Dr. Levesque confirms that Mr. Furlotte's low back condition "has regressed consistently with residual disabling symptomatology" which I believe is consistent with the other medical evidence. Finally, as I review the evidence, I believe Mr. Furlotte considered retiring at or before the time of the accident. He had reduced his case load and devolved most of his clients prior to the accident.

I accept that following this period he did explore and act upon the part-time situation with his brother in Goose Bay. That being said, with his habit of taking winter vacations, I do not believe Mr. Furlotte intended to continue his legal career for any appreciable period of time. In my opinion the accident did not cause his retirement from the law. CRUMBLING SKULL OR THIN SKULL It is well accepted that an injured party should not be put in a better position than his original position before the accident. As Athey v.

Leonati said at paragraphs 32, 34 and 35 (see paragraph 78 of these reasons), the court must assess what Mr. Furlotte's "original position" was and then determine the "injured position". Those paragraphs also define Thin Skull and Crumbling Skull. In Wallace v. Thibodeau, Drapeau, C.J. set out the distinction at paragraph 47 (see paragraph 83 of these reasons).

In defining thin skull situations, the Chief Justice says; "[t]hat principle pins liability on the wrongdoer for all of the proximate by-products of the injuries and losses he or she caused even if they turn out to be more significant than anticipated due to some abnormal features of the victim's bodily make-up.

Later on in the same paragraph, the Chief Justice defines crumbling skull; "it typically finds application where the wrong precipitates the onset of or aggravates problems associated with a degenerating condition that is unrelated to the wrong." I have set out the medical evidence before the Court and I am satisfied that Mr. Furlotte had a pre-existing degenerating condition which was unrelated to the accident in 1997. This condition was "pre-existing symptomatic degenerative disc disease of his lumbar spine".

I am satisfied from the medical evidence that this pre-existing degenerative disc disease did, prior to the accident and would have in the future, continue to worsen resulting in daily chronic low back pain. I am therefore satisfied by the medical opinion evidence that on a balance of probabilities Mr. Furlotte falls within the definition of "Crumbling Skull". I am further satisfied the accident aggravated this condition for a period of time by increasing Mr. Furlotte's pain for two to three years following the accident. Although it is difficult to conclude a precise time period, I accept Dr.

Levesque's comments that usually this type of soft tissue injury lasts from six months to two years. Dr. Forsythe was of the view that the pain was over on or before 2003. Dr. Forbes stated his pain levels reduced to pre-accident. Dr. Milczarek was of the opinion that the pain associated with the accident would last less than two years. However, I am also satisfied that Mr. Furlotte would have, at a similar time, suffered the chronic pain he is presently suffering. I acknowledge that there is a nuance between the words aggravate and exacerbate. In my opinion, the accident exacerbated Mr. Furlotte's pain.

In any event, I am of the view that the July 1997 accident did not make Mr. Furlotte's degenerative disc disease worse, it only increased his pain for a period of time which I find to be two years. [paras. 86-93]

[12] The following experts were called by the appellant: Dr. Forbes, the appellant’s family physician from 1986 to2009; Dr. Mockler, an expert in chronic pain, who gave opinion evidence in the assessment, treatment and management of chronic pain;Pierre Levesque, an expert in chiropractic sciences and assessment and treatment of the musculoskeletal system; Jamey Monteith,physiotherapist. The respondent called two experts: Dr. Forsythe and Dr. Milczarek. Dr. Forsythe’s expertise is in the field oforthopedics with respect to diagnosis, treatment and prognosis of musculoskeletal conditions.

He was first retained by the appellant’soriginal lawyer and gave his first report to him on June 1, 2001. Dr. Milczarek’s expertise relates to the diagnosis, treatment andprognosis of musculoskeletal injury. A review of the record indicates there were absolutely no objections at trial on the part of theappellant regarding the qualifications of the expert medical witnesses.

Furthermore, there were no objections alleging the medicalexperts were giving evidence which they were not qualified to give or that exceeded the scope of the evidence they were qualified togive. [13] In this regard the following passage from Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009) at 822-823 is instructive: If no objection is raised before the expert testifies in relation to a substantive issue, then any cross-examination as to the expert'squalifications goes only to weight, not to the admissibility of the witness' testimony (see Prepper v.

R. (1888), 1888 CanLII 56 (SCC), 15S.C.R. 401 at 408; R. v. Marquard, (SCC), [1993] 4 S.C.R. 223 at 224). Once the trial judge rules that a person has therequisite qualifications and expertise to provide opinion evidence in relation to a material issue in dispute, the extent of the expert'saccomplishments, experience and recognition by her or his peers, the focus of study within a particular field and the manner ofpresenting her evidence are matters of weight for the trier of fact (see R. v. Fisher 2003 SKCA 90 , [2003] S.J. No. 597, at para.19 (Sask. C.A.); McLean (Litigation Guardian of) v.

Seisel (2004), (ON CA), 182 O.A.C. 122, at 102-113 (Ont.C.A.)). Opposing counsel has an obligation to object if the witness testifies beyond her or his purported area of expertise. If opposing counselobjects, the trial judge has a discretion to permit the party producing the witness an opportunity to further qualify the expert. In theabsence of an objection, a technical failure to qualify a witness who clearly has the expertise in the subject matter does not mean thewitness' evidence should be ignored.

Failure by counsel to object to the expert's qualifications at an early stage is only a bar to asubsequent objection where the witness stays within her or his purported area of expertise. This situation should be distinguished fromthe case where an expert testifies beyond her or his field of expertise. If it is shown that the witness does not have the necessaryexpertise, it is immaterial that no challenge was made at the time that the witness was qualified and the trial judge should direct the factfinder to disregard the expert's opinion.

In these circumstances, the admission of opinion evidence outside the witness' expertise withouta proper direction of a trial judge may constitute appealable error: See MacIntyre v. Cape Breton District Health Authority [2011] N.S.J.No. 19; R. v. Marquard, (SCC), [1993] 4 S.C.R. 223 at, 250; R. v. Millar, [1989] O.J. No. 829 (Ont. C.A.). [para. 87] [14] To reiterate, in the present case, all the experts and their qualifications were agreed upon by consent of bothparties.

There was no objection at the outset as to the witnesses’ expertise, no assertion during their testimony that they did not possessexpertise to testify in the area, and no suggestion that they were testifying outside the scope of their expertise. There was abundantevidence to adequately support the factual background against which the medical experts expressed their opinion. The experts werequalified to give the opinions they gave.

Therefore, with respect to the award of pecuniary and non-pecuniary damages, given the heavyonus on the appellant with respect to the standard of review, the deference owed to the trial judge and the available evidence at trial, Iam of the opinion there is no basis for intervention in the appellant’s favor. There was evidence on which the trial judge couldreasonably find as he did and I am not prepared to interfere with his findings, except in one respect, which is targeted by the cross-appeal. [15] The other grounds of appeal are without merit. This was a minor accident.

Since the police were not called,there was no reconstruction of the accident. The trial judge considered all of the evidence in coming to a decision, and the appellantconceded at the hearing before us that there would be no basis for his claim for loss of investments if we were to find the trial judgemade no reversible error with respect to the finding that, at best, his claim was for increased pain for a period of two years post-accident. V.

The Cross-Appeal [16] As a general rule, a claim for loss of capacity to perform valuable services should be allowed as specialdamages (for the pre-trial period) only if the plaintiff establishes on a balance of probabilities: (1) he or she 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 thetask in question; and (3) what it would have cost to have a professional service provider perform the task (see Fobel v. Dean, (SK CA), [1991] S.J. No. 374 (C.A.) (QL), endorsed by this Court in Boucher v.

Doiron, 2000 NBCA 18, 230 N.B.R. (2d)247). Generally speaking, it makes no difference that the task was not performed, or that it was performed gratis or at a special discountrate by a family member or a friend. The award is designed to fairly compensate the plaintiff for his or her loss of capacity to perform thetask in question.

[17] In the present case, the trial judge did not make an express finding that the two first conditions had beenestablished by the appellant. However, this trial judge is very experienced in this type of case and his decision must be read as a whole.That approach reveals the trial judge understood what the applicable test was and he and the lawyers involved knew the claim for loss ofvaluable services could only succeed if their performance was prevented by the accident-related increase in pain experienced during thetwo years post-accident.

In my view, the trial judge could find the accident caused the appellant’s incapacity to perform certain tasksduring the two years following its occurrence. [18] In fact, the respondent conceded the following point in his post-trial brief: To be consistent with the entitlement to general damages for any pain associated with symptoms caused by the July 1997 accident, thedefendant acknowledges that there would be a concurrent claim for loss of valuable services for no more than two years following thedate of the accident.

On this issue, the trial judge considered the evidence of Linda Stanley, declared an expert in the cost of care and valuable services byconsent of the parties. She identified the services the appellant was incapable of performing post-accident: housecleaning, groceryshopping, interior house painting, wood stacking or splitting tending to wood stove, repairs/maintenance, snow removal, exterior housepainting, lawn mowing, chimney cleaning, spring/fall clean up, car maintenance and car cleaning. Ms.

Stanley quantified the appellant’sloss at 2.58 hours a day after consultation with him. [19] The evidence presented at trial speaks to two scenarios in the evaluation of the loss of valuable services,without expressing support for one over the other. The first quantified the cost of substitute services by reference to annual rates providedby Human Resource Development (Statistics Canada) ($11,448), while the second was based on the average local business rates($30,265). The former represents the average cost of a professional non-corporate service provider.

The latter is an average of threequotes provided by local professional corporate service providers. The issue is this: would the plaintiff have performed the tasks that hewas incapacitated from performing as a result of the accident? If the answer is yes, then the issue is simply: what evidence did the judgehave to settle upon the more expensive of the two options?

As mentioned, the plaintiff's loss of capacity to perform those tasks must becompensated on the replacement cost model, and it matters not that he does not have to pay for the services because his family andfriends have been good enough to perform those tasks for free. It is not a matter of making an award in trust for the service provider; it isa matter of compensating the plaintiff for his or her loss of capacity. [20] This modern and model approach is established in Boucher v.

Doiron where Drapeau J.A., as he then was,stated “the most practical approach is one that views replacement cost as the valuation standard in the absence of evidence making itinappropriate in the particular case before the court” (para. 30) (see Milliard v. Mescheau et al., 2006 NBBR 385 , 2006 NBQB385, 306 N.B.R. (2d) 201, aff’d 2007 NBCA 37, 315 N.B.R. (2d) 190, where Cyr J. applied Boucher v. Doiron and retained hourlywages as the measure of past loss of homemaking capacity). [21] In Smith v.

Agnew, 2001 NBCA 83, 240 N.B.R. (2d) 63, this Court explained when special damages may beawarded at trial: As a general rule, special damages will not be awarded at trial unless particulars have been pleaded or provided in a Statement ofParticulars. Rule 27.06(10) of the Rules of Court provides that particulars of damages must be pleaded to the extent that they are known.It also enjoins the party seeking relief to file and serve particulars of damages forthwith after they become known and, in any event, nolater than the date of entry for trial. See Myshrall v.

Vu (1994), (NB KB), 156 N.B.R. (2d) 241 (Q.B., Stevenson, J.),at para. 39. [para. 5] If that step is satisfied then the trial judge must go on to decide whether the evidence adduced by the parties establishes the defendant'sliability for the special damages on a balance of probabilities (see Scott v. Renton et al. (1999), (NB CA), 215N.B.R. (2d) 263, [1999] N.B.J. No. 306 (C.A.) (QL) at para. 45).

I note Professor Cooper-Stephenson’s view that “if a commercialhousemaid or homemaker’s service will have to be used, the compensatory principle requires reference to commercial rates” even thougha market replacement cost may have an element of administrative overhead and profit (see Ken Cooper-Stephenson, Personal InjuryDamages in Canada, 2d ed., (Toronto: Carswell, 1996) at 328).

There was no evidence in the present case that the services of a corporateservice provider were required. [22] The appellant did not hire a corporate service provider and, therefore, there is no evidence on which the trialjudge could move from the lower to the higher rate. It is noteworthy that Jessie Gmeiner, qualified by consent as an expert in the field ofactuarial science, used $10,000 a year as a working hypothesis to calculate the appellant’s loss of valuable services. That accords

generally with the Human Resource Development (Statistics Canada) rates of $11,448. It is not clear why the trial judge did not accept that figure in this case. He states: Ms. Gmeiner used the report of Linda Stanley to make this calculation. Ms. Stanley had arrived at a figure of $11,448.52 or $30,265.15 under Category 4. Ms. Gmeiner made adjustments and considered the interest effect on $10,000.00 from the date of the accident. She applied an interest factor of 24.21% on the amount of past loss. If I use the same method and allow $30,000.00 per year, as suggested by Ms.

Stanley for two years, it results in the following $60,000.00 + 14,526.00 (60,000.00 x 24.21%) = $74,526.00 rounded to $74,500.00. [para. 103] [ 23 ] There is not a scintilla of evidence that the lower cost scenario was unrealistic and would somehow have shortchanged the appellant. Quite the contrary, the expert evidence was that the services at issue could have been performed by a non- corporate professional service provider at the cost of $11,448 or by a corporate service provider at the higher cost of $30,265.

There was no evidence that the latter would have provided a better service than the less expensive non-corporate service provider. [ 24 ] The indisputable fact is that the appellant established the services for which a claim was made could have been competently performed for $11,448.

On the uncontradicted evidence adduced by the appellant, the award in excess of this amount constitutes a windfall, and cannot be sustained even by application of the most deferential standard of review. [ 25 ] Therefore, I am of the view the trial judge fell into error in accepting the higher rate where there was no evidence upon which he could conclude the Human Resource Development rates were not reasonable. I would substitute the lower annual rate of $11,448 for the higher one he used of $30,265.15. That would result in an award of $11,448 x 2 or $22,896 x 24.21% = $28,439, rounded to $28,500. VI.

Disposition [ 26 ] I would dismiss the appeal and allow the cross-appeal. In the result, I would vary the award for loss of valuable services and the award of costs made at trial. The appellant was entitled at trial to damages in the amount of $58,500. He was also entitled to costs at trial based on an “amount involved” of $60,000, applying Scale 3, Tariff A, Rule 59, which I would fix at $5,375. [ 27 ] The respondent is entitled to costs in this Court. There was an overlap of issues on the appeal and cross-appeal so I would award costs of $3,000 for both.

In that regard, it should be noted that counsel for the respondent conceded it was not more onerous to refute the arguments raised on the appeal whether it was a $4 million claim or a $60,000 claim. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK

____________________________________ KATHLEEN A. QUIGG, J.A.