DATE: 20060125
DOCKET: C41761
COURT OF APPEAL FOR ONTARIO
GOUDGE, BORINS AND FELDMAN JJ.A.
B E T W E E N :
JOSEPH RUSSELL BROWN and ELIZABETH MARY BROWN
Respondents
- and -
CAMIONNAGE INTRA-QUEBEC INC., WILLY “BLANC”, STEVE RUMBLE, HARTECH INTERNATIONAL LIMITED, RONALD RUMBLE and MAURICE ARBOUR
Appellants
Counsel: Barry A. Percival, Q.C. for the appellant Hillel David for the respondent
Heard: December 22, 2005
On appeal from judgments of Justice David Salmers of the Superior Court of Justice dated March 20, 2003 and April 2, 2004.
BY THE COURT:
[1] In this court, the appellants’ cornerstone argument is that the trial judge erred in concluding that the respondent Mr. Brown had suffered a brain injury in the accident on the basis of evidence to that effect from Dr. Mamelak, when most, if not all, other doctors providing reports, many with more relevant sub-specialities, concluded otherwise.
[2] In our view, this argument cannot succeed. Dr. Mamelak was qualified as an expert in psychiatry with special interest in minor brain injury. Mr. Percival fairly concedes that Dr. Mamelak was qualified to give the opinion that Mr. Brown had suffered a brain injury. It is true that other doctors, including neurologists and neurosurgeons who treated and examined Mr. Brown, filed reports that found no brain injury. However, as Mr. David pointed out, there were yet other medical reports filed that supported the finding of a brain injury to some degree.
[3] In the end the trial judge carefully set out his reasons for preferring the opinion of Dr. Mamelak and those reasons clearly withstand scrutiny in this court.
[4] Whatever the relative expertise of one sub-speciality compared to another to render such an opinion, Dr. Mamelak was undoubtedly qualified to give the opinion he did. The weight to be attached to that opinion was for the trial judge. It was not a palpable and overriding error for the trial judge to rely on it even in the face of other contrary opinions. The trial judge’s erroneous reference to the latter as defence reports was innocuous and played no part in his conclusion.
[5] Having found as he did, it was entirely logical for the trial judge to accept Dr. Mamelak’s opinion that Mr. Brown would always be unemployable as a consequence of the accident. Given that finding, no question of mitigation arises.
[6] The trial judge’s evaluation of lost past and future income was also a finding open to him on the evidence and we see no error in his conclusion.
[7] Finally, the trial judge applied a gross-up for tax on future care costs after concluding that a structured settlement was not in the plaintiff’s best interests. He considered the relevant circumstances in reaching this conclusion, including the fact that the lump sum would go to purchase a house rather than to pay for future care. The balancing of the relevant considerations was for the trial judge and there is no palpable and overriding error to justify our intervention.
[8] The appeal is dismissed with costs on a partial indemnity basis to the respondent fixed at $10,000.00 inclusive of disbursements and G.S.T.
RELEASED: January 25, 2006 “STG”
“S.T. Goudge J.A.”
“S. Borins J.A.”
“K. Feldman J.A.”