Large Damage Award in Personal Injury Action

Graham Jones of Shields & Hunt represented Colin Traquair in a personal injury action against the National Arts Centre Corporation (“NAC”).

The Situation
This case involved a very talented trombone player with the NAC Orchestra, who fell backwards in his chair off the rear of the stage during a rehearsal, striking his head against the back wall. Mr. Traquair suffered a concussion from the fall and experienced neck pain and regular headaches that continued to the date of trial, five years after the accident.

Mr. Traquair’s was seated in the Orchestra at the rear of the stage, on a riser approximately 18” above the stage floor. A wood barrier had been installed at the back of the riser to prevent the musicians’ chairs from falling off the back of the platform. On the day of the accident, the stage had been constructed in such a way that there was a small gap in the wood barrier of approximately 3”. During the rehearsal, Mr. Traquair adjusted his chair and one of its legs was pushed through the opening, causing him to fall backwards off the rear of the riser.

The Trial
At trial, the NAC took the position that the stage was built according to industry standards and that Mr. Traquair was careless when he adjusted his chair. Mr. Jones argued that the NAC was negligent in the manner in which the stage had been constructed and that Mr. Traquair could not have been expected to have seen the gap in the protective barrier. The Judge agreed with Mr. Jones and found the NAC responsible for the accident.

The NAC also argued that the injuries suffered by Mr. Traquair as a result of the accident were relatively minor and that many of his symptoms were caused by his psychological profile. The NAC called two medical experts at trial, a neurologist and a neurosurgeon. Mr. Jones called two medical experts at trial, a neurologist and an occupational health physician specializing in injuries to musicians.

The expert medical evidence presented at trial was contentious and contradictory. The NAC’s medical experts gave evidence that, in their opinion, Mr. Traquair’s injuries were relatively minor in nature and that his symptoms were caused by factors unrelated to the accident. However, during cross-examination, Dr. Gorman, the NAC’s medical expert, conceded that based on Mr. Traquair’s history, Mr. Traquair could have been expected to have approximately eight to ten headaches in the five years after the accident had the accident not occurred, and that the over 200 reported headaches he actually experienced post-accident were therefore directly related to the injuries he sustained. In short, this clearly established that Mr. Traquair’s injuries were not minor and, in fact, had been the cause of Mr. Traquair’s almost daily headaches since the date of the accident.

The case then turned to the issue of damages. Mr. Traquair claimed damages for his pain and suffering and loss of enjoyment of life, medical expenses and loss of income.

With respect to damages for pain and suffering and loss of enjoyment of life, Mr. Jones argued that in addition to the usual factors considered in assessing general damages, the Court had to consider the special characteristics of Mr. Traquair. In particular, the fact that playing the trombone had been a very large part of Mr. Traquair’s enjoyment of life. While Mr. Traquair continued playing at a professional level and, thus, earn his living, the injuries he had suffered removed much of the joy of playing the trombone. As such, Mr. Jones argued that the losses suffered by Mr. Traquair were more significant to him than for many other individuals suffering from similar symptoms. The Judge agreed and awarded $75,000.00 in general damages.

The issue of Mr. Traquair’s claim for loss of income was vigorously disputed by the NAC. At trial, the NAC’s lawyer argued that there was no loss of income as Mr. Traquair remained playing with the NAC Orchestra and, in fact, had a higher income post-accident than he did pre-accident. Mr. Jones argued that Mr. Traquair was a world class trombone player who had been destined to play in one of the top orchestras in the world and, thus, earn a higher income. Mr. Jones called three witnesses who gave evidence that prior to the accident, Mr. Traquair was talented enough to play at the highest level.

It should be noted that Mr. Traquair continues to play at a very high level with the NAC Orchestra post-accident. Indeed, Pinkus Zukerman, the NAC Orchestra’s Conductor, gave evidence at trial that Mr. Traquair continues to play beautiful music and that he is very satisfied with Mr. Traquair’s performance. However, the evidence at trial established that Mr. Traquair is unable to practice for the extensive periods of time necessary to secure a position with a large orchestra due to his continuous headaches.

Mr. Jones called expert evidence as to the income Mr. Traquair would have earned with a large orchestra and argued that there was a 60% to 70% chance that he would have obtained such a position. The Judge accepted this expert evidence and awarded damages for future loss of income in the amount of $424,296.00. In addition, the Judge awarded past loss of income in the amount of $21,089.00.

The Result
In total, Mr. Traquair was awarded $624,000.00, inclusive of prejudgment interest. The NAC was also ordered to pay Mr. Traquair’s legal costs and disbursements.

Mr. Jones is a partner with Shields & Hunt specializing in civil litigation. He can be reached at (613) 230-3232 ext. 307 or gjones@shields-hunt.com.