Hayward v. Young, 2013 NSCA 64

NOVA SCOTIA COURT OF APPEAL Citation: Hayward v. Young, 2013 NSCA 64 Date: 20130522 Docket: CA 388940 Registry: Halifax Between: Craig Hayward Appellant Respondent by Cross-Appeal v. Matilda Young Respondent Appellant by Cross-Appeal Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: January 21, 2013 Subject: Motor Vehicle Accident. General Damages for Soft Tissue Injury. Range Set in Smith v. Stubbert (1992), (NS CA), 117 N.S.R. (2d) 118 (C.A.). Proof of Causation. Proof of Damages. Loss of Future Income orDiminished Earning Capacity. Loss of Valuable Services/Housekeeping. Cost of Future Care. Standard of Review. Credibility.

Summary: Following a motor vehicle collision in 2003 the appellant sued for substantial general and pecuniary damages,claiming he had suffered a traumatic brain injury in the crash. After a 9-day trial the judge found that the claimant had failed to prove the2003 accident caused or contributed to his complaint of a brain injury. She was concerned that his doctors had been left in the dark aboutan assault 12 years earlier which had left him unconscious. She concluded the medical evidence was insufficient to establish anythingother than serious soft tissue injuries that developed into chronic pain.

She awarded him $120,000 general damages for pain andsuffering and loss of amenities and another $10,000 for the cost of future care. She dismissed his claims for loss of future income ordiminished earning capacity as well as loss of valuable services/housekeeping. He appealed and the defendant cross-appealed.

Held: Appeal dismissed. Cross-appeal allowed. No reason to disturb the judge’s conclusion that the appellant had failed to prove the car accident caused or materially contributed to any alleged traumatic brain injury. Her findings of fact including her serious reservations about the appellant’s own credibility were fully supported on the record. However, after finding that the appellant’s soft tissue injuries fell within the range established in Smith v. Stubbert , the judge clearly erred in awarding him more than double what that range allowed.

Accordingly, trial judge’s award of $120,000 for general damages was reduced to $57,500, that being the maximum one could expect to receive for non-pecuniary damages for such soft tissue injuries as established in Smith v. Stubbert , adjusted for inflation. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 23 pages. NOVA SCOTIA COURT OF APPEAL Citation: Hayward v. Young , 2013 NSCA 64 Date: 20130522 Docket: CA 388940 Registry: Halifax Between: Craig Hayward Appellant Respondent by Cross-Appeal v.

Matilda Young Respondent Appellant by Cross-Appeal

Judges: Saunders, Hamilton and Beveridge, JJ.A. Appeal Heard: January 21, 2013, in Halifax, Nova Scotia Held: Appeal dismissed and cross-appeal allowed per reasons for judgment of Saunders, J.A.; Hamilton and Beveridge, JJ.A. concurring. Counsel: Richard A. Bureau, Adam D. Crane and Sean Smith (Articled Clerk), for the appellant (respondent by cross- appeal) James L. Chipman , Q.C. and Kate Marshall, for the respondent (appellant by cross-appeal) Reasons for Judgment: [ 1 ] Craig Hayward was injured in an automobile accident on April 5, 2003. Liability for the accident was admitted by the defendant.

The case proceeded as an assessment of damages before Nova Scotia Supreme Court Justice M. Heather Robertson. [ 2 ] Mr. Hayward claimed damages exceeding one million dollars for his injuries which included soft tissue trauma to his shoulder, neck and lower back. He also said he had received a traumatic brain injury as a result of striking his head on the driver’s side window during the mishap. This he said left him with significant cognitive deficits which seriously impaired his business career and personal life. [ 3 ] The trial lasted nine days.

In a written decision dated July 18, 2011 (now reported 2011 NSSC 294 ) Robertson, J. was not persuaded that the accident in 2003 caused or contributed to Mr. Hayward’s complaint of a brain injury. In her view, the medical evidence was insufficient to establish anything other than serious soft tissue injuries that developed into chronic pain. She awarded Mr. Hayward $120,000 general damages for pain and suffering and loss of amenities and another $10,000 for the cost of future care. She dismissed Mr.

Hayward’s claims for loss of future income or diminished earning capacity as well as loss of valuable services/housekeeping. [ 4 ] Justice Robertson’s decision led to two appeals which we heard on the same day. The first (or main) appeal focused on the trial judge’s award of damages. It comprised both an appeal by the plaintiff/appellant Mr. Hayward and a cross-appeal by the defendant/respondent Ms. Young. [ 5 ] In his appeal Mr.

Hayward said the judge erred in failing to find that he had suffered a brain injury in the accident and for not awarding substantial general and pecuniary damages to compensate for his loss. He also appealed the judge’s refusal to award him anything for loss of future income or diminished earning capacity; as well as loss of valuable services/housekeeping; and for not awarding a more generous amount for the cost of future care. [ 6 ] In responding to the main appeal the defendant Ms.

Young said that (apart from the judge’s error in awarding excessive general damages for the soft tissue injury) there was no basis to disturb her other findings as the judge’s reasons were not the result of any palpable and overriding error, or improper exercise of discretion. [ 7 ] In her cross-appeal, Ms. Young said the judge erred in law in awarding general damages in the amount of $120,000 which was more than double the maximum set by this Court for soft tissue injuries of this kind.

Thus, the defendant asked that the award for general damages be reduced to properly reflect the upper limit in current dollars adjusted for inflation. [ 8 ] The second appeal was limited to the judge’s award of costs ( Young v. Hayward , CA No. 386760, now reported as 2012 NSSC 56 ). Separate reasons will be filed in that case, although these two judgments should be seen as companion decisions arising from the same set of circumstances. [ 9 ] For the reasons that follow I would dismiss Mr. Hayward’s appeal and allow Ms. Young’s cross-appeal. [ 10 ] The following brief

summary of the facts will provide sufficient context for the analysis that follows. Background [ 11 ] Mr. Hayward was injured in an automobile accident on April 5, 2003 when the 1996 Volkswagen GTI he was driving was struck on the driver’s side by a 1998 Pontiac driven by Mr. Young who “ran” a stop sign at an intersection in Dartmouth. The force of the impact shattered the window and pushed the driver’s door inward against Mr. Hayward’s left side. Damages to his vehicle were appraised at $5,747. After the collision Mr. Hayward was able to drive his car back to work.

Liability for the accident was admitted by the defendant. [ 12 ] Mr. Hayward was employed by Nova Communications (“Nova”), a wireless systems company owned by his mother and father which specialized in mobile, cellular, wide area networks, paging and internet connections. At the time of the accident in 2003 he held the position of Vice-President, Logistics and Operations, responsible for inventory control and purchasing.

[13] Following the collision and after getting himself back to the office, Mr. Hayward’s father drove him home. He felt disorientedand nauseous. He vomited later that day. He did not seek medical help until a few days later when he consulted his family physician. He described feeling stiff and sore, experiencing dizziness and nausea and excruciating pain in the whole of his upper neck, right sideand upper shoulder area. He was prescribed anti-inflammatory medication and muscle relaxants. [14] He attended physiotherapy and massage therapy sessions in 2003-2004.

In March, 2004, eleven months after the accident, Mr.Hayward first complained of some memory loss. He became moody, irritable, short of temper and chronically tired. He said he wasunable to meet the demands of his work, to learn new systems, to organize his day, to multi-task or perform as he once had. He began tomiss project timelines and had difficulty preparing accurate proposals and plans for company engineers. He said it took him twice aslong to complete any task. He was treated for depression in January, 2005. [15] In January, 2006 Mr. Hayward consulted with a neurologist, Dr. Alexander MacDougall.

He was referred for an MRI. In herdecision Justice Robertson described the results of that MRI: [53] ... The report revealed "Focal gliosis inferiorly in both frontal lobes in keeping with old trauma. No acute process isdemonstrated." In other words the MRI revealed some scaring from an old injury. [16] Mr.

Hayward claimed that the collision in April, 2003, left him with a traumatic brain injury which brought about seriouschanges in his mood and personality, left him with debilitating migraine headaches, and significantly impaired his cognitive functions allof which forced him to make extraordinary efforts to do his job at Nova. He predicted that he would soon be forced to give up hiscareer. [17] At trial Mr. Hayward advanced the following claim: [7] Mr.

Hayward seeks: General Damages (Past and Future) $150,000 Loss of Future Income $1,137,000 Costs of Future Care $75,000 Lost Housekeeping Capacity $50,000 and prejudgment interest and special damages for costs incurred in presenting his case. [18] In support of his case Mr. Hayward relied upon the evidence of Dr. Susan Lappin and Dr. Farah Kapur; physiotherapist ThomasStanley; clinical neuropsychologist Dr. Wayne MacDonald; neurologist Dr. Alexander MacDougall; psychologist Dr. Erica Baker;actuary Ms. Jessie Shaw Gmeiner; as well as the testimony of Mr.

Hayward himself; his wife Kimberley Hayward; father GeraldHayward; friend Barry Brown; and work colleague Star Bayer. He also introduced the written report of Dr. Robert Mahar who haddiagnosed a whiplash associated disorder grade 2/4, together with additional documentary evidence of medical treatments and therapiesundertaken by Mr. Hayward. [19] The only witness called by the defendant at trial was Dr. Yvonne Toupin, a neuropsychologist who conducted an independentmedical examination of Mr.

Hayward on July 20 and 21, 2010. [20] The defendant ‘s position at trial was that the alleged traumatic brain injury could be explained by an earlier event in 1991when Mr. Hayward, then 19, was assaulted in downtown Halifax, an attack which left him unconscious on a city sidewalk for half anhour. Medical records confirmed that four days after the beating Mr. Hayward still could not remember the event. While accepting thatMr. Hayward’s soft tissue injuries and subsequent complaints of neck, shoulder and lower back pain justified a general damage award inthe mid-range, following Smith v.

Stubbert (1992), (NS CA), 117 N.S.R. (2d) 118 (C.A.), the defendant said thatMr. Hayward’s claim for loss of income, or loss of future income should be rejected because he had worked continuously since the dayof the accident. [21] From this brief

summary it is obvious that Justice Robertson had two very different “theories” of loss to consider. Assessingthe plaintiff’s case required a careful scrutiny of proof of causation, proof of damage, and the evidence offered to establish or challengethe claim, recognizing of course that the burden was on Mr. Hayward to prove his case to a civil standard. Mr. Hayward’s Appeal Issues [22] In this the main appeal, Mr. Hayward raises four issues.

He says the trial judge erred in: i. failing to find that he suffered a traumatic brain injury in the motor vehicle accident; ii. declining to award any damages for loss of future income or diminished earning capacity; iii. “only” awarding him $10,000 for loss of future care; and iv. declining to award him anything for loss of valuable service/housekeeping. Standard of Review [23] These four issues as framed by the appellant challenge both Justice Robertson’s findings of fact as well as her quantification of

damages. In either event, on appellate review we accord a high degree of deference to the trial judge’s conclusions. With respect to factual matters we will not intervene unless satisfied that the judge’s findings of fact, or inferences drawn from those facts, reveal palpable and overriding error. See, for example, Housen v. Nikolaisen , 2002 SCC 33 ; H.L. v. Canada (Attorney General) , 2005 SCC 25 ; and McPhee v. Gwynne-Timothy , 2005 NSCA 80 .

When reviewing a trial judge’s assessment of damages we will only intervene if we are persuaded that the judge applied a wrong principle of law (as for example taking into account some irrelevant factor, or failing to consider a relevant one) or where the damages awarded are so inordinately high or low as to constitute a wholly erroneous assessment. Sharpe v. Abbott , 2007 NSCA 6 . [ 24 ] Before turning to my analysis of the appellant’s grounds of appeal I want to add a brief but important comment concerning the way in which Mr. Hayward introduced and characterized the issues in his factum.

He prefaced his grounds with the words: Having reached the conclusion that the Appellant was seriously injured ... did the Learned Trial Judge err ... and so on. Respectfully, I do not accept the appellant’s characterization as an accurate representation of the trial judge’s findings. I am not aware that Justice Robertson ever said Mr. Hayward was “seriously injured” in her decision. What she did say was that Mr.

Hayward had not: ... suffered from anything other than serious soft tissue injuries that developed into chronic pain. [ 25 ] Considering the very substantial awards sought by the appellant, under several heads of damage, I think it essential to state with precision what the judge said, or did not say, when considering the appellant’s various challenges to her conclusions. It is not a question of parsing her words but rather accurately representing how she came to characterize the extent of Mr. Hayward’s injuries and what he had managed to prove.

I simply make the point here because it seems to me that the appellant’s choice of words in his factum discloses a faulty premise which then tends to undermine the several challenges he brings to the judge’s assessment of damages. Analysis i. Did the judge err in failing to find that the appellant suffered a traumatic brain injury in the motor vehicle accident? [ 26 ] There is no suggestion that the trial judge erred in her appreciation or application of the law as it relates to causation. She cited such leading authorities as Resurfice Corp. v. Hanke , 2007 SCC 7 and Fullowka v.

Pinkerton’s of Canada Ltd. . 2010 SCC 5 before concluding: [13] I must be satisfied on a balance of probabilities that Mr. Hayward's injury, a traumatic brain injury, would not have occurred but for the negligence of the defendant. [ 27 ] She then embarked upon an extensive review of the medical and other evidence led by Mr. Hayward in support of his claim. She addressed the multiple challenges to that evidence put forward by the defence including the testimony of its own expert, Dr. Yvon Toupin, a neuropsychologist who conducted an independent medical examination of Mr. Hayward in July, 2010.

From Justice Robertson’s very comprehensive reasons it is obvious that she preferred the evidence of Dr. Toupin to that of the other health care professionals who had treated the appellant. Choosing to accept Dr. Toupin’s opinion over any other contrary views was clearly her decision to make. Nothing in this record causes me to question the soundness of that decision. [ 28 ] Justice Robertson had serious concerns with respect to the credibility and reliability of some of the evidence presented by the appellant.

She began her analysis by listing at para. 10 the host of factors the defendant raised to challenge the appellant’s demands: 1. Mr. Hayward did not seek medical treatment immediately after the accident. 2. Mr. Hayward did not inform his own medical experts of his earlier head injury of 1991 therefore calling the validity of their diagnosis into question. 3. Mr. Hayward did not reveal to these same medical experts that he had other motor vehicle accidents both before and after the April 5, 2003 event. 4. Mr.

Hayward although complaining of severe physical distress that curtailed his activities, was the subject of surveillance at a rental property he owns in Truro, Nova Scotia, working long into the night March 5 and 6, 2010, doing heavy physical labour, painting walls and installing cabinetry in one of the rental units. 5. That the day following this work, Mr. Hayward attended physiotherapist Tom Stanley for a functional assessment and failed to mention this activity or its effect on him. 6. That Mr.

Hayward has exaggerated his cognitive impairment and failed one of the two validity tests, when he was assessed by his own expert, neurologist Dr. Wayne MacDonald. 7. That Mr. Hayward's work related difficulties did not immediately arise following the accident. 8. That any cognitive difficulties, stress or anxiety from which Mr. Hayward clearly suffers, cannot be attributed to the accident and may indeed relate to issues surrounding depression and alcohol abuse. 9.

That continued complaints of pain are complicated by injuries sustained in the motor vehicle accident of July 2010. [ 29 ] Justice Robertson was obviously surprised and troubled to learn that Mr. Hayward’s treating physicians had been left in the dark about much of his previous history. For example, the claimant’s neurologist, Dr. Alexander MacDougall had opined in his letter to Mr. Hayward’s family physician dated June 20, 2006:

...Clearly this man did suffer a significant head injury and has some residual scarring in the interior frontal lobes bilaterally, worse on the left side. In the absence of any other history or injury or neurologic illness I think we have to conclude this damage is the result of his motor vehicle accident. ... [ 30 ] Yet, as Justice Robertson notes: [72] Dr. MacDougall testified that he asked Mr. Hayward if he had any other brain trauma and Mr. Hayward had said no. Dr.

MacDougall testified "if there was no other history apparent of significant trauma in the past ... ergo the injury could be attributed to the motor vehicle accident." [ 31 ] During cross-examination Dr. MacDougall said he had been told that Mr. Hayward had never lost consciousness in the subject motor vehicle accident. The doctor acknowledged that loss of consciousness would indicate a more severe injury. This is important when seen in the context of the serious head injury Mr. Hayward sustained 12 years before this automobile collision. Robertson, J. referred to the evidence of Dr.

Wayne MacDonald, a clinical neuropsychologist who treated the appellant, noting: [83] Dr. MacDonald premised his report on Mr. Hayward having a serious head injury from a motor vehicle accident where he broke the driver's side window with his head in 2003. [84] He was unaware of any other accidents or injuries and was unaware of the assault of Mr. Hayward in 1991 that had rendered him unconscious on the street. Dr. MacDonald agreed that "if there was an earlier head injury that would be important." ... [93] What concerned me about the opportunity for assessment that Dr.

MacDonald had was a serious lack of background information on Mr. Hayward that could have informed him better on Mr. Hayward's earlier years, and most certainly on his medical history. [94] As pointed out by defence counsel on cross-examination, Dr. MacDonald did not have the following background information that was in fact available: 1. Access to Mr. Hayward's earlier education records. He was not provided any school records. He did not know Mr. Hayward failed grade 3. He did however know Mr. Hayward had a math tutor in high school. Dr. MacDonald assumed that there was no history of ADHD. Dr.

Lappin's medical notes -- Exhibit 1, Tab 1, p. 76 made reference to this on January 12, '05 "worsening ADD -- Effexor ..." 2. Dr. MacDonald was unaware of Mr. Hayward's earlier post-secondary education record at Mount St. Vincent University, a partially completed year in 1993-94 with three courses completed and the following grades 52, 59, 70. 3. He was unaware Mr. Hayward subsequently took one executive MBA course in 2004-05 and received an A-following the accident. 4. Dr.

MacDonald had not been given any of the family physicians' records to review, or records from physiotherapy and massage therapy that detailed his progress after the motor vehicle accident in 2003. 5. Dr. MacDonald had not been given the opportunity to review discovery transcripts of Mr. Hayward's testimony. 6. In particular, he did not have the opportunity to view the medical records that describe the 1992 assault -- Exhibit 1, Tab 5, p. 2 -- that of Dr. Hilda Fox. Craig assaulted while in downtown Halifax 4/7 ago. He was unconscious for 2 hr and still has amnesia of accident.

He was treated at VG emerg, had sutures to mouth & lip. He had moderate concussion. He still feels nauseated and has pounding headache. 7. Nor had he seen the record of Dr. Christopher Mintern, D.D.S. consulted on May 6, 2006, regarding TMJ, who was uncertain of causative factors but noted headaches "I can't say definitely. I think it's more sinus related." 8. Although assessing Mr. Hayward for his executive functioning skills, he did not have any detail as to Mr. Hayward's work history or job description, Dr.

MacDonald could say that he only knew it was a family business. [95] This lack of background information was a concern to me. This knowledge and expressed opinions of other medical personnel would in my view have better informed his examination. And, I dare say the report would have been significantly different, in its result. [ 32 ] The trial judge then reviewed Dr. Toupin’s evidence in detail. I will cite several portions of the judge’s decision which explain both the basis for her acceptance of Dr. Toupin’s evidence and her conclusions that Mr.

Hayward had failed to prove what was really the keystone of his claim for damages. Robertson, J. reasoned: [100] Also unlike Dr. MacDonald, Dr. Toupin self-administered all of a similar battery of tests in his assessment of Mr. Hayward. He spent almost two full days in his company and had a significant opportunity to observe Mr.

Hayward and interrelate with him. [101] He testified that although professional psychometrists are often asked to administer this battery of usual tests, in his opinion it was important to stay with the subject being tested so as not to "miss all of the testing patient behaviour." He also had Mr. Hayward answer a series of questions in writing to further observe his mental activity, attention to detail and writing skills. [102] On page 2 of his report, Dr. Toupin detailed his very extreme review of medical files and other documents relating to this litigation. I note that Dr.

Toupin refused to view the surveillance videos of Mr. Hayward working on his rental property because he testified he did not wish to commence the examination having any bias. [103] Dr. Toupin also recorded Mr. Hayward's personal account of events and was able to test those answers provided against all of the other medical reports and documents that were the subject of his review.

[104] Essentially, Dr. Toupin viewed his role: ... to rule in/out a Traumatic Brain Injury, as a result of the above cited accident, the 2003 MVA. [105] It was Dr. Toupin's finding that: It is my opinion that Mr. Hayward's current symptomatology cannot be explained by an injury to his brain that could have been sustained in the Motor Vehicle Accident that happened on April 05, 2003. It is also my opinion that pain and psychological factors contribute to maintaining Mr. Hayward's symptomatology. My above opinion is "objective" and it is expressed with a high degree of certainty. ... [116] Dr.

Toupin also expressed concern that Mr. Hayward when asked to list "all previous accidents -- falls -- emergency or hospital visits or any previous sickness before 2003" answered "none" with the exception of "broke clavicle when I was in my early teens." [117] This is in conflict with the evidence before the Court of the 1991 head injury following the assault, an accident on May 21, 1999 when Mr. Hayward hit a deer with his car which sustained considerable damage and one on June 12, 2002 which was of a more minor nature, rear-ending another vehicle while exiting a Tim Horton's driveway. When confronted by Dr.

Toupin with the information Mr. Hayward then recalled these other events. [118] Dr. Toupin also pointed out the dichotomy between Mr. Hayward's self-reported busy active life at home, at work and in leisure times (Tables 16 and 17) and the symptoms he outlined as being quite debilitating at Table 15 of the report. [119] Dr. Toupin listed Mr. Hayward's plethora of medication on Table 18 and noted the possible side effects of the medicine he takes at Table 19. [120] Dr. Toupin also expressed concern at the indicator of Mr. Hayward's alcohol usage.

At Table 20 of his report, he shows extracts from the plaintiff's medical records which contain various notations as to his alcohol use: [Comparative Chart Omitted] ... [126] Dr. Toupin testified that if Mr. Hayward had suffered from a traumatic brain injury, he could not respond as he did to the questions, to the ringing blackberry or to identify all his activities so precisely. He was responding at a high level, not as a brain-injured individual. [127] Dr. Toupin pointed out that when one is unhappy at the workplace, work becomes hard to do.

He also cautioned that individuals involved in litigation have a more present and constant sense of their pain and stress. He testified there is also a tendency to think of earlier times as being better and healthier times. [128] Dr. Toupin's cautioned the Court not to simply to accept self-reported symptoms, but to look beyond and search for some objective medical findings of traumatic brain injury. [129] His cautioned the Court, that in light of Mr. Hayward's pending litigation, to ensure there had been sufficient symptom veracity testing. In this case, it was shown that Mr.

Hayward was making an insufficient effort in this memory testing. [130] In Dr. Toupin's view, there were too many inconsistences in Mr. Hayward's various responses to questions by health professionals which he documented throughout his report. [131] Dr. Toupin testified the fact that Mr. Hayward did not change his work habits after the accident and indeed had greater responsibility and this is counter-indicative to a sustained traumatic brain injury. Dr.

Toupin testified that you cannot hide a brain injury like you cannot hide a badly broken leg and that it would not be possible therefore that his boss could be unaware of Mr. Hayward's problems. [132] In an overall assessment of all of Mr. Hayward's health records, which he had access to and spent many hours reviewing, Dr. Toupin concluded that Mr.

Hayward, symptomatology and particularly his headaches could be caused by many things including his levels of stress and his excessive use of alcohol in combination with his medication. ... [ 33 ] After carefully taking into account this and other evidence from expert and lay witnesses the trial judge said: [197] ... I cannot conclude or accept that the only reasonable explanation for Mr.

Hayward's deterioration is the fact of a traumatic brain injury suffered on April 5, 2003. [198] On all the evidence before me, I have concluded that the plaintiff has been unable to prove causation in this case. [199] I am not satisfied on the balance of probabilities that the motor vehicle accident of 2003, caused or materially contributed to the plaintiff Mr. Hayward's complaint of a brain injury. There is insufficient medical evidence to establish that Mr. Hayward suffered from anything other than serious soft tissue injuries that developed into chronic pain as a result of the accident.

Indeed, I am satisfied on a balance of probabilities that the earlier assault of 1991 is the most likely explanation for the scar tissue, as shown on the MRI of May 2006. Further, I am satisfied on the balance of probabilities that the presence of the scar tissue from this old injury is not the cause of his present behaviour. [200] There are other plausible explanations such as stress, the plethora of medications, alcoholic abuse, and dramatic changes in Mr. Hayward's work and family situation to account for the complaints of memory loss and lack of concentration or diminution in executive

functioning. This is not only evident in the lay witnesses' testimony but also in the testimony of the plaintiff's own medical experts and in the records of his physiotherapists. [ 34 ] Later in her reasons we see further examples of the judge expressing serious reservations about Mr. Hayward’s credibility.

For example, when addressing his trial lawyer’s suggestion that frailties or gaps in the appellant’s testimony could be explained by the brain injury alleged to have occurred in the accident, Justice Robertson dismissed any such submission with these words: [204] His counsel has offered the explanation that because Mr. Hayward suffered from a traumatic brain injury as a result of the 2003 motor vehicle accident, he is unable to testify clearly, as to his cognitive deficits or to chronicle them accurately in time, in any significant detail. [205] I do not accept this circular argument. Mr.

Hayward has been subjected to rigorous testing by Dr. Baker, Dr. MacDonald and Dr. Toupin. Particularly, Dr. Toupin observed the detailed answers Mr. Hayward was able to provide, his multi-tasking, and his capacity to check himself for the accuracy of his answers. I also note from my own observations of Mr. Hayward at trial, he had few observable memory difficulties and remembered dates and events better than other witnesses. [206] I accept Dr. Toupin's evidence that were Mr. Hayward to have had a brain injury he would not present as he did.

Of concern to me was the result of the veracity testing, that showed a lack of effort and brought the total assessment into question. [207] I have also previously reviewed the lack of information the plaintiff's medical witnesses had respecting his background and previous medical history, allowing them all to assume that the only event that could account for the MRI results was the 2003 motor vehicle accident. Even Mr. Hayward's own medical witnesses agreed that the 1991 assault was significant, when they learned of it. [208] Mr.

Hayward appeared less than forthright about his past medical history on numerous occasions. This has been a concern to me. (Underlining mine) [ 35 ] Respectfully, in light of these strong findings it cannot be seriously suggested that the trial judge erred in concluding that Mr. Hayward had failed to prove the car accident caused or materially contributed to an alleged traumatic brain injury.

Her finding that there was insufficient medical evidence to establish “anything other than serious soft tissue injuries that developed into chronic pain as a result of the accident” is not the product of palpable and overriding error. It acquires strong support in the record. There is no basis for us to intervene. ii. Did the trial judge err in declining to award any damages for loss of future income or diminished earning capacity? [ 36 ] Having found as she did it is not surprising that Justice Robertson declined to award Mr. Hayward anything for loss of future income or diminished earning capacity.

Obviously she was unimpressed by his claims of permanent, debilitating disruption to his personal and professional life, or his actuarial projections seeking more than $1M as compensation for such a loss. Instead, she accepted the evidence that his employment with Nova since the accident had been continuous. Despite his parents’ sale of the business to other owners, he had retained his position as Vice-President, Business Development, earning more than $100,000 in 2009. Robertson, J. observed: [196] The fact is Mr. Hayward has continued to work at a job where his responsibilities were increased since 2003.

He has worked continuously, although suffering from chronic pain. He knows his industry well and I am not satisfied that his job is in peril. ... He has carried on through pain, depressive episodes, substance abuse and an additional significant car accident of July 2010. [ 37 ] The judge went on to reject his claimed entitlement to pecuniary damages for lost present and future income. She said: [211] Mr. Hayward has no loss of income claim. He has been consistently employed and also able to engage in at least two other business ventures, including the rental income property in Truro, Nova Scotia.

Notwithstanding, chronic pain, he is able to do significant physical labour, as seen in the video surveillance of March 2010. [212] Any suggestion of a loss of future income is entirely speculative. There is simply no foundation for a claim of loss of earnings and no evidence that he cannot continue in his present employment into the foreseeable future. I do not accept that the plaintiff has proved this claim. [ 38 ] Given these findings, clearly supported on the record, there is no reason to intervene. iii.

Did the trial judge err in “only” awarding him $10,000 for loss of future care? [ 39 ] I see no such error. The judge said: [215] Mr. Hayward has incurred some out of pocket expenses, not covered by his or his wife's insurance policy, which set limits on physiotherapy and massage and do not cover certain prescription medication. I therefore assess the figure of $10,000 for loss of future care to offset those continuing treatments he may require in access (sic) of insurance limits. It was argued that Mr. Hayward could loose (sic) this health insurance and that this claim should therefore be greater.

I do not find on the evidence that this is the case. [ 40 ] Clearly the judge was alive to the prospect that Mr. Hayward might face some expense for future care and that the sum of $10,000 would adequately compensate for that possibility. Having sat through a 9-day trial Justice Robertson was in the best position to assess the likelihood of such a potential future claim and put a value on it. On this record it is not our role to second guess her assessment. iv.

Did the trial judge err in declining to award him anything for loss of valuable service/housekeeping? [ 41 ] For the same reasons I would not interfere with the trial judge’s refusal to award Mr. Hayward damages for loss of valuable

service/housekeeping. She reasoned: [213] With respect to loss of valuable service, the plaintiff Mr. Hayward carries on most of his pre-accident activities includinghousehold duties. Both the Haywards have busy lives and careers and manage to bring up three small boys. Mr. Hayward plays asignificant role on a daily basis in child care. Like other couples they hire a little help, and both carry on household chores, although Mr.Hayward may not be able to do chores such as cutting wood, with the same energy he demonstrated in the past.

I find there is nosignificant reduction in his capacity to do this type of unpaid work. [214] In other daily activities, Mr. Hayward continues to travel on family holidays, business trips, engage in hobbies such as campingand boating and visits to the family cottage. [42] Once again, the trial judge was in a preferred position. She had nine days to size up the appellant, consider his circumstancesas described in testimony, reports, and videotape, and reach her own conclusions as to his physical abilities and the potential need forhelp from others.

After reviewing the trial judge’s comprehensive and balanced assessment of the evidence as well as her strongfindings of fact, I see nothing here to warrant appellate intervention. [43] Essentially the appellant has asked us to retry the case and substitute our views as to the weight and significance of the evidencefor the strong findings made by the trial judge. Respectfully that is not our role. Conclusion [44] For all of these reasons I would dismiss Mr. Hayward’s appeal from the trial judge’s assessment of damages and would awardcosts to the respondent Ms.

Young in the amount of $2,000 inclusive of disbursements. Ms. Young’s Cross-Appeal [45] Here the defendant Ms. Young says the trial judge made a serious and obvious error when, having explicitly found that Mr.Hayward did not suffer from anything other than “serious soft tissue injuries” which “should be assessed at the high end of Smith v.Stubbert” she nonetheless proceeded to award $120,000 for pain, suffering and loss of amenities. [46] I agree. [47] In Smith v.

Stubbert (1992), (NS CA), 117 N.S.R. (2d) 118 (C.A.), Justice Chipman, for the majority, saidat ¶37: [37] I have considered a number of recent cases involving damage awards for injuries not unlike those sustained by the respondent.Most are cases dealing with that small percentage of people who do not recover from soft tissue injuries of the neck but suffer long-termdiscomfort which almost invariably brings on emotional problems. Some of the cases dealt with other injuries in addition, and othersdealt with injuries of a different nature but having the common feature of long-term chronic pain.

No two cases are alike and even similarinjuries will impact differently on different people. In the cases reviewed, the symptoms persisted and usually many doctors wereinvolved in the treatment and/or assessment of the injuries. Each case was decided by a different court at a different time and a preciserange of awards cannot, with precision, be laid down. In broad terms the range for non-pecuniary damage awards for such persistentlytroubling but not totally disabling injury is from $18,000.00 to $40,000.00. (Authorities omitted) [48] The range expressed in Smith v.

Stubbert has been the law in Nova Scotia for general damage awards in cases of this type forthe past 20 years. Adhering to the range established by this Court promotes consistency, predictability and certainty when arriving at afair and reasonable award for general damages on account of pain, suffering and loss of amenities. [49] Naturally, when such damages are seen to fall within the Smith v. Stubbert range, they are adjusted to account for inflation andthen expressed as current dollars prevailing at the time of trial.

While, from time to time, there have been mild discrepancies, the rangehas been consistently upheld as providing a fair and reasonable measure of compensation. From my review, there has not been anymarked departure from that range apart from adjustments for inflation. See for example: Landry v. McCormick Estate (1997), (NS SC), 158 N.S.R. (2d) 97 (S.C.) at ¶70; Terry v. Lombardo (1998), (NS SC), 167 N.S.R. (2d)365 (S.C.) at ¶28; Porter v. Langille, 2001 NSSC 90, ¶20; Whitehead v. Plouffe, 2001 CarswellNS 531, ¶45; Berthier v. Horton,2003 NSSC 198, ¶94; Lush v. Thompson, 2003 NSSC 249, ¶19; MacAulay v.

Smith, 2006 NSSC 19, ¶50; Morel v. Bryden, 2006NSSC 218, ¶66; Merrick v. Guilbeault, 2009 NSSC 60, ¶36; and Gillis v. Roy Stutley Plumbing and Heating Ltd., 2012 NSSC 244,¶234. [50] In Smith v. Stubbert , Chipman, J.A. set the range at between $18,000 to $40,000 so that in 1992 $40,000 represented themaximum one could expect to receive for non-pecuniary damages in cases where soft tissue injuries had led to “long-term discomfortwhich almost invariably brings on emotional problems”, and leaving the plaintiff with “persistingly troubling but not totally disablinginjury”.

For the purposes of this appeal it is not disputed that $40,000 in 1992 would translate into the sum of $57,149.64 in 2011, thatbeing the year when the judge filed this decision (these figures provided by counsel based on the Bank of Canada inflation calculator). [51] By granting Mr. Hayward $120,000 in general damages, the trial judge more than doubled the upper limit set by this Court inSmith v. Stubbert. She offered no explanation for awarding such compensation, nor did she provide any reasons for departing from thelong recognized range established more than 20 years ago and consistently applied ever since.

Curiously, the judge cited Smith v.Stubbert as well as a host of other cases as being “instructive as to the range of damages” (her decision at ¶15) in situations where theclaimant was found to have suffered soft tissue injuries which led to troubling and persistent complaints but which were not totallydisabling. The judge went further and distinguished that line of cases from Mawdsley v.

McCarthy’s Towing & Recovery Ltd., 2010NSSC 168 where Bryson, J. (as he then was) was satisfied that quite apart from the soft tissue injuries suffered in the accident, theplaintiff had also proved a permanent brain impairment following a mild but serious brain trauma such that he was awarded $100,000 ingeneral damages and $57,000 in diminished earning capacity.

[ 52 ] Yet in this case Robertson, J. expressly found that Mr. Hayward had failed to prove any traumatic brain injury or its connection to the collision with Ms. Young’s car in 2003. For convenience I will repeat what she said: [199] I am not satisfied on the balance of probabilities that the motor vehicle accident of 2003, caused or materially contributed to the plaintiff Mr. Hayward's complaint of a brain injury. There is insufficient medical evidence to establish that Mr.

Hayward suffered from anything other than serious soft tissue injuries that developed into chronic pain as a result of the accident. ... [ 53 ] She continued: [202] His chronic pain, as a result of soft tissue injuries, is more likely than not the primary cause triggering depressive episodes, as he tried to cope, with the aftermath of the accident. And further: [209] I find that Mr.

Hayward damages for the soft tissue injuries he did suffer in the 2003 motor vehicle accident should be assessed at the high end of Smith and Stubbert , considering the resulting depressive episodes and continuing disturbances in his life. [ 54 ] The judge repeated these findings in her costs decision ( 2012 NSSC 56 ) confirming once again: [8] In my decision of July 18, 2011, I found that the plaintiff had not suffered a traumatic brain injury as a result of the accident nor did I award any claim for loss of future income. ... [19] ...

Notwithstanding the lack of success on the issue of future lost wages, the plaintiff received an award on the very high end of Smith v. Stubbert ... From all of this it is obvious that the judge expressly limited Mr. Hayward’s general damage award to the “high” (or “very high” ) end of the Smith v. Stubbert range which, as we all know, was $40,000 in 1992 and slightly more than $57,000 in 2011. Had Justice Robertson intended to increase Mr.

Hayward’s general damage award to account for some other injury and impairment than just the soft tissue injuries and depressive episodes, she should have explicitly said so. [ 55 ] I agree with Mr. Chipman, counsel for the defendant, when he said that establishing a claimant’s soft tissue injuries as falling within the Smith v. Stubbert range does not constitute a “free pass” to greater damages for lost future income or diminished earning capacity.

Such additional claims must be pleaded and quantified and proved to a civil standard in accordance with this Court’s longstanding jurisprudence (see for example, Leddicote v. Nova Scotia (Attorney General) , 2002 NSCA 47 ). [ 56 ] That was precisely the approach taken by Justice Bryson in Mawdsley , supra which Robertson J. cited and distinguished from Mr. Hayward’s circumstances. [ 57 ] Had this been a case where the trial judge thought the claimant’s injuries were so severe and completely disabling that the Smith v.

Stubbert range did not apply, she would be expected to offer sufficient reasons to explain her departure from that range and why augmented damages were necessary to provide fair and reasonable compensation. That was the approach taken by this Court in Kelly v. Dillon , 1996 NSCA 79 . [ 58 ] There, the plaintiff’s counsel argued successfully in this Court that the trial judge had erred in placing her injuries within the Smith v. Stubbert range. Pugsley, J.A. agreed and increased her general damages from $45,000 to $65,000. [ 59 ] But that is not what happened in this case.

Here, there never was any suggestion that the judge ought not to apply Smith v. Stubbert if she were to conclude that he had not suffered a brain injury. The only dispute – if that were to be the result – was where in the range Mr. Hayward fit. This is what Mr. Hayward’s counsel said in his post-trial oral submissions to Justice Robertson: My Lady, I’d like to just briefly now then touch on the damages, and I’ll do them in the same order as my friend has.

Obviously - - there’s not a huge dispute other than whether or not there’s a brain injury, and we agree that general damages in the case of a brain injury are in the – in excess of $100,000. We have, of course, as proponents for Mr. Hayward suggested the high end, which is 150. It’s clearly in excess of 100,000, and the cases have been provided. Where we disagree is that if you were to find no brain injury, we’re not in the middle range of Smith v. Stubbert , but we’re in the higher range .

My friend relied on Doctor Mahar saying this is a grade II of IV injury, and he accepted that, but I think the evidence is consistent that there’s more than that going on, and we’re now, I’m going to say, eight – almost eight years post accident. We’re well into seven years post accident, and, therefore, this range of Smith v. Stubbert that he suggests of 35,000, I would submit, is extremely low . (Underlining mine) [ 60 ] Neither can it be suggested that by awarding general damages of $120,000, Robertson, J. must have included in that award some amount for diminished earning capacity.

The trial judge expressly rejected compensation for lost future income or diminished earning capacity. (See for example, ¶221-22 of her Damages decision ( 2011 NSSC 294 ) and ¶7-8 of her Costs decision ( 2012 NSSC 56 )). [ 61 ] Mr. Hayward’s counsel now asks us to say that the range set in Smith v. Stubbert is out of step with other jurisdictions and ought to be significantly increased. I decline his invitation for two reasons. First, I do not know it to be so. There is no evidence here to support counsel’s assertion.

Who knows what approach may be taken in other places, or what criteria, customs, statutory regimes or policies exist to mandate such practices? Second, the case was never advanced on such a footing and so we do not have the benefit of a record in the court below which would provide a basis for our review on appeal. It is hardly a subject to be addressed as one of first impression in this Court. (See Sharpe v. Abbott , supra ). Conclusion

[ 62 ] For all of these reasons Ms. Young’s cross-appeal is allowed. The trial judge’s award of general damages to Mr. Hayward for pain, suffering and loss of amenities is reduced to $57,500. I would award Ms. Young her costs on the cross-appeal in the amount of $2,000 inclusive of disbursements. [ 63 ] This variation of the general damage award will have an impact upon our review of the judge’s costs awards. I propose to deal with those matters in my separate decision on costs (2013 NSCA ​​​65). Saunders, J.A. Concurred in: Hamilton, J.A. Beveridge, J.A.