Andrews et al. v. Grand & Toy Alberta Ltd. et al., (1978) 8 A.R. 182 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpre, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday January 19, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 8 A.R. 182 (SCC);[1978] 2 SCR 229;1978 CanLII 1 (SCC);83 DLR (3d) 452;[1978] 1 WWR 577;8 AR 182;19 NR 50;3 CCLT 225;[1978] CarswellAlta 214;AZ-78111098;[1978] SCJ No 6 (QL);[1978] ACS no 6

Andrews v. Grand & Toy Alta. Ltd. (1978), 8 A.R. 182 (SCC)

MLB headnote and full text

Andrews et al. v. Grand & Toy Alberta Ltd. et al.

Indexed As: Andrews et al. v. Grand & Toy Alberta Ltd. et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpre, JJ.

January 19, 1978.

Summary:

This case arose out of a claim for damages for personal injuries arising out of a motor vehicle accident. The claimant suffered a severed spinal cord resulting in quadriplegia. The claimant was 21 years old at the time of the accident. The Alberta Supreme Court, Trial Division awarded the claimant $945,000 for general damages for personal injuries.

On appeal to the Alberta Court of Appeal the general damage award was reduced from $945,000.00 to $439,000.00. See [1976] 2 W.W.R. 385, 64 D.L.R.(3d) 663.

Leave to appeal to the Supreme Court of Canada was granted on the question "Did the Appellate Division err in law in respect of the assessment of damages?".

The Supreme Court of Canada reviewed and considered the assessment of damages. See the points referred to in the topic headings below. The Supreme Court of Canada increased the claimant's general damage award from $439,000.00 to $740,000.00

Damages - Topic 1554

General damages for personal injuries - Method of assessment - The Supreme Court of Canada stated that the method of assessing general damages in separate amounts is sound - See paragraph 6.

Practice - Topic 8802

Appeals - General principles - Duty of an appellate court regarding damage awards by a trial judge - The Supreme Court of Canada stated that an appellate court should not interfere with a lower court damage award unless it is satisfied that a wrong principle of law was applied or that the overall amount is a wholly erroneous estimate of the damage - See paragraph 5.

Damage Awards - Topic 67

Body injuries resulting in paralysis - Severance of spinal cord resulting in quadriplegia - Twenty-one year old male - The Supreme Court of Canada awarded the plaintiff $740,000.00 general damages for personal injuries being $570,000.00 for cost of future care, $70,000.00 for future loss of earnings and $100,000.00 for nonpecuniary losses - See paragraphs 11 and 79.

Damages - Topic 1011

Mitigation - Personal injuries - The Supreme Court of Canada stated that the doctrine of mitigation of damages is not applicable to personal injury claims - See paragraph 18.

Damages - Topic 1502

General damages for personal injury - General principles - The Supreme Court of Canada stated that damages for personal injuries are to give the injured party reparation for the wrongful act - See paragraphs 18 and 19.

Damages - Topic 1503

General damages - The Supreme Court of Canada referred to the duty of a claimant of general damages to be reasonable - See paragraphs 21 and 22.

Damages - Topic 1700

Deductions for payments or assistance by third parties - Voluntary assistance from members of the claimant's family - The Supreme Court of Canada stated that dedicated wives and mothers who care for injured husbands and sons are not expected to do so on a gratuitous basis - See paragraph 24.

Damages - Topic 1567

General damages for personal injury - Future care and treatment - As a result of a motor vehicle accident a 21 year old male severed his spinal cord resulting in quadriplegia - The claimant required constant care for the rest of his life - The claimant requested home care rather than institutional care - The Supreme Court of Canada held that the claimant's request for home care was reasonable even though the cost of such care was appreciably greater than the cost of institutional care - See paragraphs 14 to 37.

Damages - Topic 1567

General damages for personal injury - Future care and treatment - The Supreme Court of Canada stated that a quadriplegic cannot recover the expense of providing basic necessities as a part of the cost of future care and also recover future loss of earnings in full - See paragraphs 41 to 43.

Damages - Topic 1550

General damages for personal injury - Prospective loss of earnings - Working life expectancy - Twenty-three year old quadriplegic - The Supreme Court of Canada stated that a calculation of future loss of earnings of an accident victims should be based on his expected working life prior to the accident - See paragraphs 47 and 48.

Damages - Topic 1556

General damages for personal injury - Calculation and method of assessment - Deduction for contingencies - The Supreme Court of Canada discussed some relevant considerations for a court in determining a deduction for contingency - See paragraphs 49 to 51.

Damages - Topic 1546

General damages for personal injury - Discount or capitalization rate and present value of future payments - Calculation of future loss of earnings of a quadriplegic - The Supreme Court of Canada adopted a discount rate of 7% by deducting a 3.5% inflation rate from a 10.5% rate of return on high quality long-term investments - See paragraphs 53 to 60.

Damages - Topic 1565

General damages for personal injury - Deductions or payments to be considered - Income tax on future loss of earnings - The Supreme Court of Canada stated that income tax is irrelevant either to decrease the sum (for taxes the victim would have paid) or to increase the sum (for taxes the victim will have to pay on the income from the award) - See paragraph 61.

Evidence - Topic 2281

Judicial notice - Interest rates - The Supreme Court of Canada stated that current high interest rates reflect the present expectation of future inflation - See paragraph 59.

Damages - Topic 2121

Torts causing death - Fatal accidents - The Supreme Court of Canada stated that in wrongful death cases that income tax should be deducted from the value of the dependency - See paragraph 62.

Damages - Topic 1567

General damages for personal injury - Deductions to be considered in determining an allowance for future care - The Supreme Court of Canada stated that existing favourable income tax deductions for medical expenses should not be considered in assessing damages for future care and treatment of a 23 year old quadriplegic - See paragraph 64.

Damages - Topic 1543

General damages for personal injury - Pain and suffering, loss of amenities and other non-pecuniary damages - The Supreme Court of Canada reviewed the proper considerations in fixing an amount for non-pecuniary damages - The Supreme Court of Canada stated that an award of $100,000.00 for non-pecuniary damages for a 23 year old quadriplegic should be regarded as an upper limit for non-pecuniary loss for similar cases - See paragraphs 66 to 77.

Cases Noticed:

Nance v. B.C. Electric Railway Co., [1951] A.C. 601, folld. [para. 5].

Admiralty Commissioners v. S.S. Susquehanna, [1926] A.C. 655, folld. [para. 18].

West v. Shephard, [1964] A.C. 326, refd to. [para. 18].

Admiralty Commissioners v. S.S. Valeria, [1922] 2 A.C. 242, folld. [para. 18].

Livingstone v. Rawyards Coal Company, [1880] 5 A.C. 25, folld. [para. 19].

Cunningham v. Harrison, [1973] 3 All E.R. 463, refd to. [para. 28].

Fletcher v. Autocar & Transporters, Ltd., [1968] 1 All E.R. 726, folld. [para. 36].

R. v. Jennings, [1966] S.C.R. 532, folld. [paras. 43, 61].

Bisson v. Corporation of Powell River (1967), 62 W.W.R. 707, folld. [para. 43].

Jennings v. Cronsberry (1965), 50 D.L.R.(2d) 385, folld. [para. 43].

Skelton v. Collins (1966), 39 A.L.J.R. 480, folld. [para. 48].

Olivier v. Ashman, [1962] 2 Q.B. 210, not folld. [para. 48].

McCann v. Sheppard, [1973] 1 W.L.R. 540, folld. [para. 48].

Warren v. King, [1963] 3 All E.R. 521, folld. [para. 49].

McKay v. Board of Govan School Unit No. 29 of Saskatchewan, [1968] S.C.R. 589, folld. [para. 49].

Bresatz v. Przibilla (1962), 108 C.L.R. 541, folld. [para. 49].

Mallett v. McMonagle, [1970] A.C. 166, refd to. [para. 54].

Schroth v. Innes, Perry and Shiels, [1976] 4 W.W.R. 225, refd to. [para. 58].

Ward v. James, [1965] 1 All E.R. 563, folld. [para. 70].

Hamel v. Prather, [1976] 2 W.W.R. 742, refd to. [para. 73].

Jackson v. Millar, 4 N.R. 17; [1976] 1 S.C.R. 225, dist. [para. 75].

Authors and Works Noticed:

British Law Commission (No. 56), Report on Personal Injury Litigation, Assessment of Damages [para. 8].

McGregor on Damages, 13 Ed., page 738 [para. 19].

Kemp & Kemp, Quantum of Damages, vol. 1, 3rd Ed., page 4 [para. 19]; vol. 1, Supp., page 28 [para. 48].

Fleming, Damages: Capital or Rent? (1969), 19 U of Toronto L.J. 295 [para. 33].

Mayne and McGregor on Damages, 12 Ed., page 659 [para. 48].

Stevens, Actuarial Assessment of Damages: The Thalidomids Case (1972), 35 M.L.R. 140, page 150 [para. 49].

Traversy: Actuaries and the Courts, 29 Aust. L.J. 557 [para. 50].

Counsel:

D.K. Laidlaw, Q.C., R. Cummings and D. Andrews, for the appellants;

John Weir and Beverly Larbalestier, for the respondents.

This appeal was heard by LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., at Ottawa, Ontario on June 15 and 16, 1977.

The judgment of the Supreme Court of Canada was delivered by DICKSON, J. on January 19, 1978.