Read the full judgment text of CACV 000050/1987 on BabelCite. This Court of Appeal judgment was delivered on 16 September 1987 before Cons, V.-P., Hunter, J.A. & Hooper, J..
Tort – negligence – personal injury – contributory negligence – assessment of percentage deduction – tunnel work in compressed air – welding work in narrow space adjacent to railway track – locomotive emerging from compression lock – quantum of damages – pre-accident wage rate – Labour Department form – pre-trial loss of earnings – rate of pay for welders – failure to mitigate – residual earning capacity – appeal. The plaintiff, a welder employed underground by the 1st Defendant sub-contractor of the 2nd Defendant, was struck by a locomotive and suffered severe spinal injuries while crouching in a narrow space between a welding machine and a railway track in a compressed-air tunnel. The trial judge found both defendants liable, assessed damages at $600,645 plus interest, and reduced the award by 65% for contributory negligence. On appeal, the court held the 65% deduction was far too high and substituted 20%, following the approach of Lord Atkin in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152 that the standard of self-care expected of a workman varies with the noisy, stressful conditions of a mine or tunnel, and the plaintiff could not reasonably be expected to detect and avoid a locomotive emerging from a compression lock less than 12 metres away. The court also held that the pre-accident daily wage rate should be $200 per day as recorded in the Labour Department form completed by the 1st Defendant, notwithstanding the 1st Defendant's later oral evidence to the contrary; that the pre-trial loss of earnings should be calculated on the average between the general welder's rate at the beginning and the $180 per day rate at the end of the period (as accepted by the trial judge from the Census and Statistics Department); and that the deduction for failure to mitigate should be limited to $1,800 per month, the figure the plaintiff conceded as his residual earning capacity, since the conditions of the labour market are not a 'notorious' fact on which a judge may rely without evidence. The appeal was allowed; the 100% damages were recalculated at $842,705, and after deducting 20% contributory negligence the net award was $674,164.
Legal issues: Excessive finding of contributory negligence · Correct pre-accident daily wage rate · Pre-trial loss of earnings calculation rate · Failure to mitigate damages and deduction for residual earning capacity
Outcome: Appeal allowed; assessment of contributory negligence reduced from 65% to 20%, and damages recalculated on a 100% basis to $842,705, producing a net award of $674,164 after the 20% deduction.
Cited by 1 case