Court File and Parties

CITATION: Bull v. Turchinetz, 2009 ONCA 447

DATE: 20090529

DOCKET: C48089

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Watt JJ.A.

BETWEEN

John Bull

Plaintiff (Appellant)

And

Jim Turchinetz

Defendant (Respondent)

Counsel: Todd J. McCarthy, for the appellant Janet S. Young, for the respondent

Heard: May 21, 2009

On appeal from the judgment of Justice Margaret P. Eberhard of the Superior Court of Justice, sitting with a jury, dated November 14, 2007.

Reasons for Decision

Goudge J.A.:

[1] On September 5, 2002, the appellant John Bull was seriously injured when his vehicle was rear ended by a vehicle driven by the respondent Jim Turchinetz. On November 14, 2007, after a 15-day trial, the jury found that there was no negligence on the part of either person which caused or contributed to the accident. The appellant’s action was therefore dismissed. The jury assessed the appellant’s general damages at $10,000.00, his past loss of income at $14,500.00, and his future loss of income at zero. The appellant appeals both liability and damages.

LIABILITY

[2] Appellant’s counsel, who was not trial counsel, candidly acknowledged that there was evidence at trial sufficient to properly sustain the jury’s findings. In particular, he acknowledged the evidence that a blue car driven by an unknown driver cut in front of the appellant forcing both him and the respondent to slam on their brakes suddenly, and that this caused the accident. In this court, the appellant argued that these facts had not been pleaded by the respondent with the result that this evidence should have been excluded or the trial judge should have told the jury to disregard it and find that fault for the accident lay with either the appellant or the respondent or both, but could not be found to lie with an unknown driver.

[3] I disagree. The position of the respondent at trial was that he was not negligent in any way, as the collision was caused entirely by the actions of the blue car. This was put to the jury as his position in the trial judge’s charge. The evidence to support this position came from the respondent, and would undoubtedly have been known to the appellant from at least the time of discovery onward. It went in at trial without objection from appellant’s counsel, who made no request of the trial judge to direct the jury to disregard the evidence. Neither counsel had any objections to the charge. This was not a trial by ambush.

[4] On the basis of this evidence, it was entirely open to the respondent to take the position that he was not negligent and that the collision was caused by the actions of the blue car. The jury’s finding that there was no negligence by the respondent which caused or contributed to the accident was neither perverse nor the product of any legal error by the trial judge.

[5] The liability appeal fails.

DAMAGES

[6] Counsel for the appellant candidly acknowledged that the assessment of general damages is defensible on the evidence, although at the low end of the range. I agree. The trial judge suggested a range of $10,000 to $25,000 if the jury found the pain and suffering from the accident to be limited to soft tissue injuries now healed. That appears to be the view the jury took.

[7] However, the appellant does contest the assessments of past and future income loss. In my view they are also defensible and do not represent perverse findings. They would seem to rest at least in part on the same premise – that the injuries due to the accident were soft tissue injuries and were healed by the time of the trial. There was ample evidence on which these assessments could be properly based.

[8] The damage appeal also must fail.

[9] In the result, the appeal is dismissed. Costs to the respondent fixed at $15,000 inclusive of disbursements and GST.

RELEASED: May 29, 2009 “STG”

“S.T. Goudge J.A.”

“I agree E.E. Gillese J.A.”

“I agree David Watt J.A.”