Here is a decision from New Haven in the United States that I am reporting here just to illustrate the amount of damages that can result from a professional error involving negligence.
This is a case in which the plaintiff lost the use of his left shoulder after a doctor damaged his spinal accessory nerve. The doctor misdiagnosed the plaintiff’s complaint as a swollen lymph node requiring surgery. In fact, it was mild bacterial infection (cat scratch disease).
The operation resulted in nerve palsy, permanent disfigurement of the left shoulder and inability to extend his arm above his head. The plaintiff was able to use his right arm but had dramatic recall of the surgery and other psychological problems. He was unable to continue working.
The damage award was $4.2 million.
Interpretation of words limit the use of the easement
The defendant owned land that was served by an easement over the plaintiff’s property. The words of that easement provided “road access and utility corridor”.
The easement granted people/animals/vehicles the right to use, enter, pass and re-pass over and upon the easement.
The defendant, however, wanted to install a sewer line along the length of the easement in order to connect to the district’s sewer system. The plaintiff disputed that use and in the end the trial judge and Court of Appeal agreed with the plaintiff.
They looked at the wording of the grant, which did not permit construction of utilities “underneath the land”. The reference of the words indicated the easement was to be used for transit use “exercised over and upon the land” and thus was limited to the surface of the property and not below it.
Do you have a real offer to purchase?
A retail pharmacy chain was interested in purchasing a pharmacy store’s assets. The owners of the pharmacy store engaged in negotiations and the chain made an offer to purchase. The offer was conditional and subject to verifications. The chain later refused to buy the assets and the store owner sued for $1 million.
The trial court dismissed the store owner’s action. On appeal the court held that the “offer” by the chain was merely a promise to purchase and not a formal sale agreement. Again, this raises the issue of the words used in the document and the purpose and intent of the parties being “ad idem”, or a meeting of the minds. Words are so important.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
